Tag Archives: blackfaced professor

No, of course I’m not talking about President Schill’s decision to discipline Law Profressor Nancy Shurtz. Johnson Hall doesn’t make mistakes.

I’m talking about Rutgers President Robert Barchi and a professor who tweeted something stupid and offensive about New York City real estate, near as I can figure. InsidehigherEd has the report here. People complained. An extensive and expensive investigation of the twit apparently recommended some discipline. It also provoked the sorts of criticism that President Schill got for his handling of the Shurtz matter, such as this from Erwin Chemerinsky, now Dean of the law school at Berkeley:

… I, of course, am not arguing that free speech on campus is absolute. Campuses can punish speech that is incitement to illegal activity or that threatens or directly harasses others. Campuses also can engage in more speech, which long has been recognized as the best response to the speech we don’t like. There can be efforts to educate the community about the history of blackface. There should be debates about whether it is ever appropriate to use blackface even when advocating against racism in higher education.

But what campuses never can or should do is punish speech because it is offensive.

I would have hoped a law school faculty and a university president who is a lawyer and law professor would have recognized this. Unfortunately, what happened at the University of Oregon is all too typical of what is happening on campuses across the country where the desire to create inclusive learning environments for all students has led to punishing speech protected by the First Amendment.

Barchi now seems to want to end things, and pulls out the boilerplate every university president should keep in their template folder:

“Like many in our community, I found that Professor ________’s comments showed especially poor judgment, were offensive, and, despite the professor’s claims of satire, were not at all funny,” he wrote. “At the same time, few values are as important to the university as the protection of First Amendment rights — even when the speech we are protecting in insensitive and reckless.”

Which should end things right there – but instead he’s going to appoint another committee.

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.

In an admirable demonstration of transparency she even had the Law School post it on their official twitter feed – although no photo of the wickedly funny (black) student who showed up in whiteface. This is in reverse chronological order, so start at the bottom.

1. UO School of Law‏ @Oregon_Law 7h7 hours ago

   There is a curriculum committee that discusses all courses offered. Apologies, but there is a class in this room right now. I hear you, and thank you, all. @Marcilynn_Burke
2.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   Comment from Student: A lot of our frustrations are with Prof. Shurtz, who isn’t even here. Precedent in this matter doesn’t set a clear path for preventing a similar incident in the future, (return to faculty, take sabbatical, etc.).
3.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   Res. @Marcilynn_Burke: We could have had this conversation before Spring Break, but I wanted it now. It wasn’t clear from the agenda that this was the opportunity to talk about Prof. Shurtz coming back to teach class. Thank you to the UOLaw SBA, BLSA for getting the word out
4.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   Comment from Student (3L in Portland, Pres. BLSA): The administration did not contact the Black Law Students Association after receiving 30 emails last year about this incident from the Dean.
5.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   Comment from @UOsojc Student: What does diversity and inclusion mean to this law school community when the professor may not even understand the ramifications of her actions?
6.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   Comment from Student: This professor is not held accountable to students. She isn’t here and should be here.
7.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   Comment from Student: It’s not just that she’s coming back. It’s that she’s teaching a class that I would have to set aside my identity to attend.
8.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   “I agree with about 93% of what you’ve said. The time is now,” @Marcilynn_Burke Training for professors is part of our Diversity Action Plan and starts this summer. But, there is a lot of work to be done. Most cannot be done overnight, but it is being done.
9.  UO School of Law‏ @Oregon_Law 7h7 hours ago

   Statement from Student: I am really disappointed that change is not taking place now. I have had to explain environmental racism to other students and faculty. We need to make change now.
10.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    Comment from Student: As a white person (1L), I am not as affected by the action Prof. Shurtz took as my colleagues of color, but I am disgusted by it.
11.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    Q4: Please, @Marcilynn_Burke say what the incident was. A4. “Prof. Shurtz wore blackface at a party in her home.” Questioner: The decision to apply makeup and a wig takes time and intention and planning. Others can intervene.
12.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    A3: @Marcilynn_Burke I am familiar with the opinions Prof. Shurtz has made in the press.
13.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    Q3: Has Prof. Shurtz been educated about the difference between Blackface and cultural appropriation?
14.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    Q2. How informed about the climate at #OregonLaw was @Marcilynn_Burke before coming here? (And how do you get sabbatical? I’d like one.)
15.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    A1. @Marcilynn_Burke The decision predates me and was made by the Provost before Prov. Banavar. What students have told me is that we (#OregonLaw) are more than 1 incident.
16.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    Q1: You mentioned things about what defines Oregon Law, maybe to US News or law firms, but you also mentioned community. Does having [Prof. Shurtz] back in the classroom defining our community in a way we want?
17.  UO School of Law‏ @Oregon_Law 7h7 hours ago

    It defines us by the decisions we make, by the community we are, by what we choose to do. So, yes. It is a defining moment, and I look forward to working with you as we continue to define who we are as OregonLaw. —@Marcilynn_Burke
18. UO School of Law‏ @Oregon_Law 8h8 hours ago

    “This incident does not define #OregonLaw.” @Marcilynn_Burke
19.  UO School of Law‏ @Oregon_Law 8h8 hours ago

    “Some of you might feel like not announcing [Prof. Shurtz’s return] was like sweeping it under the rug… Since that day, there is no sweeping it under the rug.” @Marcilynn_Burke #UOLawTownHall
20.  UO School of Law‏ @Oregon_Law 8h8 hours ago

    Dean @Marcilynn_Burke discusses her decision to come to #UOLaw. “People are talking about the students, faculty, and staff and the great things we do in the world.” I came here knowing there was an ugly incident, too, but it did not stop me from wanting to be your Dean.
21.  UO School of Law‏ @Oregon_Law 8h8 hours ago

    “Imagine a world where we all looked the same. That would be a tragedy. “I know our school has gone through some tough challenges, and I look forward to learning more about it. “I want to be there to support @Marcilynn_Burke , to support you, and to work together as a family.”
22.  UO School of Law‏ @Oregon_Law 8h8 hours ago

    “I have been told that we are much more than a traditional Law School, with more than a JD and LLM. We also have a #CRES Master’s degree program and an undergraduate program.” Within the context of a big research university, it means we can address the complexity of our world.
23.  UO School of Law‏ @Oregon_Law 8h8 hours ago

    Welcome to @uoregon Provost Jayanth Banavar. “My job is really to champion your interests, to help you… and to do whatever I can to make things better for you.”
24.  UO School of Law‏ @Oregon_Law 8h8 hours ago

    The agenda was strategic plan, diversity plan, school climate and Q&A, but we’re changing that up due to student feedback. – @Marcilynn_Burke
25.  UO School of Law‏ @Oregon_Law 8h8 hours ago

    Today’s #UOLawTownHall is set to begin. Thanks, all for coming out!

The decision was unanimous. The Washington Post’s Eugene Volokh has the analysis here. Kennedy, Ginsburg, Sotomayor and Elena Kagan’s concurring opinion reads as if written specifically in response to the UO administration’s discipline of law school professor Nancy Shurtz:

The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs … but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.

I’m no lawyer, but this language doesn’t seem to give any support for the November 30th 2016 report from the UO General Counsel’s attorneys, concluding that the First Amendment did not protect Professor Shurtz, because she had engaged in speech that a particular audience thought offensive:

… In evaluating the event in light of the University’s policies against discrimination, it is important to outline the outcomes and impacts following the event, upon both the attendees as well as the student body. As stated previously, different guests had differing personal perspectives, so the range of responses varied accordingly. One point that was clear, at least before the event, was that most of the attendees knew Shurtz (setting aside the family members and plus-ones), had an appreciation for or understanding of her personality and her general intentions, and held her in esteem.

All the students interviewed made it very clear that the impacts of the event and the costume extend far beyond those students and individuals who were in attendance, and that the resulting environment at the school has been very negative and contentious. …

VII. CONCLUSION

Based on the interviews conducted and our review and analysis of the information obtained during this investigation, we conclude:

1. That Nancy Shurtz’s wearing of the costume at the stated event constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment under those policies.

2. That the actual disruption and harm to the University resulting from Nancy Shurtz’s wearing of the costume at the stated event are significant enough to outweigh Nancy Shurtz’s interests in academic freedom and free speech.

Respectfully Submitted, Edwin A. Harnden Shayda Z. Le Barran Liebman LLP

Not without a formal judgement by her peers following established procedures. In fact the administration can’t even punish her without that. Academic freedom is still pretty strong at UO.

See the “final investigative report” from UO’s employment law specialists Edwin A. Harnden & Shayda Z. Le of Barran Liebman, LLP, and the letter from Provost Coltrane posted here. Page 5 of the Harnden-Ze Report cites UO’s Academic Freedom Policy – signed by former UO President Mike Gottfredson, after months of negotiations between him, the UO General Counsel’s Office, and the UO Senate:

SECTION 2

These freedoms derive immediately from the university’s basic commitment to advancing knowledge and understanding. The academic freedoms enumerated in this policy shall be exercised without fear of institutional reprisal. Only serious abuses of this policy – ones that rise to the level of professional misbehavior or professional incompetence – should lead to adverse consequences. Any such determinations shall be made in accordance with established, formal procedures involving judgment by relevant peers.

Coltrane’s letter to the faculty does not even hint at the possibility that he followed any “formal procedures involving judgment by relevant peers” before issuing his personal judgement that “… 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”,  or that he plans to do so. Yet that same sentence makes clear that Coltrane’s decision that Shurtz had engaged in “Discriminatory Harassment” was made after consideration of her academic freedom, so the above policy clearly applies. Harnden & Ze even put it in their report. Very helpful.

In November Vikram Amar,  Dean of the University of Illinois law school reviewed the legal issues with UO law dean Michael Mofffitt’s decision to suspend Professor Shurtz from teaching on the well-read law blog Above the Law: “On Academic Freedom, Administrative Fairness, And Blackface“. On November 14th UO law professor Ofer Raban had an op-ed in the Oregonian, “A teachable moment on practicing what we preach”, here. On Dec 26th, UCLA law professor Eugene Volokh wrote an Op-Ed in the Washington Post: “At the University of Oregon, no more free speech for professors on subjects such as race, religion, sexual orientation“. On Jan 1st, Raban wrote a second Oregonian Op-Ed, “A sad day for freedom of speech and expression at the University of Oregon” explaining the legal issues with the investigation and interpretation of UO policy and free speech law conducted by UO’s hired employment law specialists, Edwin A. Harnden & Shayda Z. Le of Barran Liebman, LLP.  Their report and the letter from Provost Coltrane are here. (If anyone knows of any analyses by legal scholars – aside from Harnden & Ze – defending Coltrane’s statement that “… 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” please post a link in the comments.)

Today there’s an opinion piece from Erwin Chemerinsky, UC-Irvine Law school Dean. He was the founding dean in 2007, and UC-I is now the 28th rated law school, according to US News. “The 2014 Most Influential Person in Legal Education” according to National Jurist. His UC-I webpage and google scholar citations.

I’ve just posted the beginning and end. Read it all here:

UO is right to insist upon cultural competency

Get over it!” “It’s no big deal!” “You’re too sens­itive!” “There are people with real problems in the world!” “Let it go and move on with your life!”

As an African-American woman who grew up in the segregated South and has spent the past 30-plus years in liberal Eugene, I’ve heard these messages all of my life — and they are now being played in stereo in letters to the editor regarding the recent blackface incident at the University of Oregon.

Well, let me add my two cents’ worth.

1) There are people at the UO experiencing a great deal of pain because of this incident. Understand that pain is not felt on a sliding scale. Only the person experiencing pain, embarrassment and disappointment can determine how much it hurt. Their pain needs to be respected.

2) The fact that life-threatening events are occurring in the world does nothing to alleviate the inappropriateness of a professor with more than 30 years of experience at a respected institution being unaware of the historical use of blackface, yet trying to stimulate a conversation on racial biases..

… 5) The fact that no one told her that her costume was insensitive during the party is understandable. It is common for people to be so shocked by insensitive behavior that they become momentarily speechless, especially if they have not had sufficient experience with confronting such egregious behavior and wish to avoid making a scene or offending a host.

… 7) I feel hope when I hear that some of the professor’s guests were able to recognize that the costume was inappropriate and had the will to speak up, and that university administrators heard them. This is the behavior of allies in the fight for racial justice. They should be applauded, not harangued.

8) I am hopeful that the university will use this as an indication that there are probably others who would benefit from diversity training. There are many people in liberal Eugene who cannot see the need for a well-meaning person who “loves everyone the same” to attend such training, but perhaps the professor would not be in this most undesirable position now if she had understood that good intentions don’t always work so well without knowledge and training.

Perhaps it is time for the professor and those rallying to her cause to “get over it,” understand that she harmed the institution that employs her, accept the consequences of her actions, realize that there are greater problems in the world and move on with life.

Martha Moultry of Eugene is a retired teacher and principal who has worked in the United States, Asia and Africa.

UO President Michael Schill is a former UCLA law school dean. UO General Counsel Kevin Reed is a former UCLA general counsel. Eugene Volokh is a rather well known UCLA law professor, whom Reed has asked for advice on the proposed TPM free speech restrictions. Quoting from Volokh’s UCLA webpage:

Eugene Volokh teaches free speech law, tort law, religious freedom law, church-state relations law, and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O’Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.

Volokh is the author of the textbooks The First Amendment and Related Statutes (5th ed. 2013), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 75 law review articles and over 80 op-eds, listed below. He is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, and the founder and coauthor of The Volokh Conspiracy, a Weblog that gets about 35-40,000 pageviews per weekday. He is among the five most cited then-under-45 faculty members listed in the Top 25 Law Faculties in Scholarly Impact, 2005-2009 study, and among the forty most cited faculty members on that list without regard to age. …

Here is the start of his column in the Washington Post today on the UO administration’s decision that UO law professor Nancy Shurtz’s stupid and offensive halloween costume “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.”

1. Last week, the University of Oregon made clear to its faculty: If you say things about race, sexual orientation, sex, religion and so on that enough people find offensive, you could get suspended (and, following the logic of the analysis) even fired. This can happen even to tenured faculty members; even more clearly, it can happen to anyone else. It’s not limited to personal insults. It’s not limited to deliberate racism or bigotry.

This time it involved someone making herself up as a black man at a costume party (as it happens, doing so in order to try to send an antiracist message). But according to the university’s logic, a faculty member could be disciplined for displaying the Mohammed cartoons, if it caused enough of a furor. Or a faculty member could be disciplined for suggesting that homosexuality may be immoral or dangerous. Or for stating that biological males who view themselves as female should be viewed as men, not as women. Or for suggesting that there are, on average, biological differences in temperament or talents between men and women.

All such speech at the University of Oregon will risk your being suspended or perhaps even worse. Orthodoxy, enforced on threat of institutional punishment, is what the University of Oregon is now about. …

Read it all here.

Slate has the latest here. Thanks to a reader for the link. The professor apparently tweeted an obscure reference to Toussaint L’Ouverture. His dean didn’t get the sarcasm, or the First Amendment, so his job is now on the line. The professor’s job that is. Should be an interesting meeting.

Diane Dietz has the latest in the RG:

STATEMENT FROM UO LAW PROFESSOR NANCY SHURTZ REGARDING IMPROPER RELEASE OF INFORMATION CONCERNING AN INTERNAL INVESTIGATION ABOUT A HALLOWEEN PARTY HOSTED IN HER HOME

On Wednesday, Dec. 21, 2016, the University of Oregon improperly released a flawed investigative report into events surrounding a Halloween party that I hosted in my home. This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light. For example, it ignored the anonymous grading process, the presence of many non-students as guests, and the deceptive emails that created a firestorm in the law school.

I, and my legal advisers, were preparing a response to the draft report. Although the University was aware of our intention to submit our corrections by noon (local time) yesterday and to deal with its errors in-house, the Provost’s office or its advisers cynically decided to try to publicly shame me instead.

As the UO’s press release itself notes, the University is prohibited by law from disclosing personnel matters. But the press release and uncorrected Report act as a supremely public retaliation against me for seeking, even if clumsily, to raise issues of insufficient diversity in American professions. My attorney and I are evaluating our legal options.

###

(Note to reporters and editors: Pending the submittal of our comments to the UO, out of respect for all involved we will not comment any further on this ongoing process.)