Still no update from the UO administration on Professor Shurtz’s suspension or their investigation of her. Meanwhile FIRE, the Foundation for Individual Rights in Education, has this:
Student Cleared of Baseless Charges from Anti-Lynching Art Display
ROCK HILL, S.C., Dec. 19, 2016—A Winthrop University student was found not responsible for violating two university speech codes after her involvement with a campus anti-lynching art installation. This outcome comes six days after the Foundation for Individual Rights in Education (FIRE) and the National Coalition Against Censorship (NCAC) wrote to the university president to ask that the charges be dropped.
“The art display was intended to create a conversation on campus about racism and lynching and it did exactly that,” said FIRE Program Officer Sarah McLaughlin. “We are hopeful that the result of this ordeal is more speech, not less, and that those who wish to continue the conversation can do so without their free speech rights being threatened.”
11/7/2016 update: Law School Dean explains blackface legal issues, criticizes Schill as unfair
Also see the open letter to President Schill letter from “Professor R”, in the Emerald here:
…. It is a sad testament to the current state of our “free” speech that even writing this letter seems too risky to pen under my own name. Those that would seek to invalidate my stance based on my race and background commit the same offense they decry — invalidation of whole persons based on race – this logical fallacy was once called ad hominem.
College of Arts and Sciences
University of Oregon
That would be the Dean of the University of Illinois law school, Vikram Amar. In a nutshell, he explains that students have more First Amendment protections than faculty do. On balance he says Professor Schurtz may well still be protected by it, and quite possibly by other law. Read it all, I’ve only posted the ending:
On Academic Freedom, Administrative Fairness, And Blackface
By VIKRAM AMAR
… My second observation is that the First Amendment is not the only potentially relevant legal constraint. Due process (are faculty clearly told what they cannot say so they are not sandbagged?), contract law (tenure is often a contract concept), and state constitutional protections may give public faculty members more latitude than does the First Amendment. And these extra protections may be perfectly appropriate if we do take seriously historical notions of academic freedom.
My last observation is an important one, and that is that critics of Professor Shurtz have themselves erred. President Schill’s quick characterization of Professor Shurtz’s use of blackface as being “in jest” is at odds with her own explanation, and we need remember that there has been no process yet to determine any actual facts. Shurtz’s 23 faculty colleagues assert that her “intentions [don’t] matter.” But whether we are interpreting the First Amendment or deciding whether someone should be required to give up her very livelihood, intent ought clearly to matter a great deal. After all, the reason (correctly identified by those calling for her resignation) that Shurtz’s actions warrant serious scrutiny is that they may undermine her (and the university’s) trust and credibility with students, alumni and the community. But wouldn’t students, alumni and the outside world want to know why she did what she did in deciding how much less they like and trust her and the law school? If she did it to mock African-Americans (or merely “in jest” because she is flippant about race), aren’t they likely to be much more angry and disaffected than if she did it to support the cause of racial equality (like the author in Black Like Me who feigned blackness to document racism), even if her attempt was clumsy, ill-advised and ultimately counterproductive? Again, no process has yet found the full facts (I have no familiarity with Professor Shurtz and am not vouching for her sincerity). But the idea that intent is irrelevant when heavy consequences like resignation are being considered runs counter to most areas of law and moral intuition. And lawyers – especially law professors who are teaching students how to frame arguments — ought to take care to appreciate that.
Update: Administration to start calling faculty to the office. Pres Schill emails campus.
Here at UO our famously incompetent AAEO Director is expected to start her investigation “soon”. Normally she waits until she’s missed a few deadlines and ignored a bunch of emails, then hires a high-priced consultant to cover for her. (See below for the news that UO has already hired an outside law firm for this.)
No word yet on what university policy the professor is alleged to have broken. Certainly not this one, which President Schill reiterated in his “Open Mike” email the Friday before halloween:
Let me ground this conversation in the unequivocal statement that the UO embraces free expression as one of its core principles. It is outlined in the policy on Freedom of Inquiry and Free Speech passed by the University Senate in 2010 and signed by President Richard Lariviere. The policy states the following:
“Free inquiry and free speech are the cornerstones of an academic institution to the creation and transfer of knowledge. Expression of diverse points of view is of the highest importance, not solely for those who present and defend some view but for those who would hear, disagree, and pass judgment on those views. The belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive, or ‘just wrong’ cannot be grounds for its suppression.”
My own views on free expression are entirely consistent with this strong statement of principle. As the inscription at the EMU Free Speech Plaza states, “Every new opinion, at its starting, is precisely in a minority of one.”
I’m still searching for the policy prohibiting offensive stupidity.
Should you be called into the AAEO office, you should be aware that Penny Daugherty’s job is to defend the UO administration, not you. Additionally, her staff are unfamiliar with the basics of university policies. If they tell you they just want to have a confidential off-the-record conversation with no repercussions, you’ll have to explain their obligations under UO’s mandatory reporting policy – they don’t understand it, or pretend that they don’t. My advice is get a lawyer and record everything. When Doug Park called me in over my “unlawful” decision to get a digital copy of UO’s Presidential archives I brought two, plus David Cecil from UAUO. Very helpful, especially since Park tried to ambush me by bringing Bill Gary from HLGR.
President Schill’s email today (11/7/2016):
Dear members of the University of Oregon community,
Last week was an incredibly difficult time for our university. The decision of law professor Nancy Shurtz to wear blackface at her Halloween party wounded our community, divided us, and exposed fissures that long existed under the surface. It is now my job as the leader of our school to not only help us heal but, more important, to move us to a demonstrably better place. The challenge for all of us is to recognize that the problem is deep and cannot be fixed with a Band-Aid. Instead, real healing, progress, and transformation will take time, persistence, and generosity of spirit.
It is not my role to attempt to discern the motives of Professor Shurtz when she chose her costume last week. Regardless of her intentions, what she did, by her own admission, was wrong. Indeed, one of the things that troubles me most about this incident is that a member of our law faculty in 2016 would not understand that the use of blackface is deeply offensive and an act of racism. As one of our students eloquently wrote to me:
“White America’s conceptions of Black entertainers were shaped by the mocking caricatures that played up the stereotypes of Black people being racially and socially inferior. No matter the intention, blackface is racially insensitive. At this point, there is no reason for anybody to be ignorant of the history of blackface. No one should have to explain why blackface is offensive or derogatory. This is well-documented history.”
University presidents are not supposed to get angry. But right now I feel both mad and more than a little sad. Over the past year, we have worked with our African American students and faculty members to make the UO a place where educational opportunity and excellence are accessible to all. We have taken the name of a former leader of the Ku Klux Klan off one of our buildings; we modestly increased the proportion of African American students in our freshman class; we created new pipeline and outreach programs; we launched a new African American studies cluster-hiring initiative; we created a new African American residential community; and we are planning new scholarship programs and testing the feasibility of a new African American cultural center. We also finalized our IDEAL framework, a plan to put in place a culture, processes, and system to promote diversity and inclusion throughout the entire university. I am excited about our progress, and I am not willing to let last week’s events slow our momentum and growth.
To the contrary, last week’s events suggest that we need to redouble our efforts to combat racism and ignorance on campus. We need to expand our work beyond students and reach our faculty, staff, and administrators. We must help our community comprehend how racist behavior can be baked into our society so deeply that some of us don’t even recognize it. And we must take actions to transform ourselves and make this school a better place.
My first instinct when faced with a problem is to dive in and fix it. But I have to admit, like my counterparts at most American universities, I know of no silver bullet. I do know that I, along with our entire academic leadership, will need to consult with our students and faculty members of color to understand their experiences and hear their ideas. Provost Coltrane and I will ask each dean and vice president to immediately begin conversations within their schools and departments with our faculty members, students, and staff members of color. The IDEAL plan calls on each school to develop plans on an annual basis. I will ask that each school and administrative unit accelerate the process and report back to me in 90 days with a set of steps they plan to take to promote diversity, combat racism in their units, and promote inclusion. I will work with the provost and our Division of Equity and Inclusion to ensure that these steps are taken and their impacts are measured.
With respect to the immediate issue of Professor Shurtz, as I announced last Monday, I have referred the matter to our Office of Affirmative Action and Equal Opportunity. That unit, which will be assisted by an outside law firm, will make a determination as to whether Professor Shurtz or anyone else violated any law or university policy. During the pendency of that process, the dean of the School of Law has placed Professor Shurtz on administrative leave to permit the law school’s educational mission to move forward.
We will provide Professor Shurtz with all of the procedural rights she is entitled to under the law and university policy. We cannot and should not prejudge that process and speculate about the outcome. And even as we condemn the use of blackface, we must consider that these actions may be protected by the First Amendment and our university’s tradition of academic freedom. While many of us feel that what Professor Shurtz has done is wrong, I also would ask that you leave space in your hearts, words, and actions for forgiveness and compassion. Although we all must be held accountable for our actions, I would also hope that we would ultimately be judged for what we do on our best days as well as our worst.
Finally, I am aware that some members of our community have received communications that are hateful, racist, and make them feel unsafe. I have read some of them and they sicken me. I have consulted with UO police chief Matt Carmichael, and we have not been able to find any credible evidence that they emanate from members of our university community. Nevertheless, I have asked the chief to deploy additional personnel both to the investigatory process and to ensuring that every member of our community is physically safe.
As we deal with this horrible episode, I ask everyone to take a deep breath and think about how their actions affect other members of the community. This is a time for us to come together to fight ignorance and racism, to promote inclusion. It is not a time to hurt each other, settle scores, or compromise our cherished values of free expression. This is a time for us to come together to make progress and not a time for us to be divided. We must support each other and treat each other with respect. We must give people the room to express their opinions and feelings, even if we disagree with them. We must not shy away from hard conversations or ugly truths, but we will not tolerate hate speech or threats—period. As president, I pledge that UO leaders will do everything we can to provide a safe and supportive campus environment for that to happen.
So let’s agree today that we, as a community, are going to use this challenging time as an opportunity to unite behind shared values and a common goal of fighting bigotry and ending prejudice on our campus and in our nation. Let’s agree that one person’s actions do not define the University of Oregon or the progress we are making toward becoming a more welcoming, diverse, and inclusive institution. By uniting as a community, we can move past this moment and become stronger and more resilient.
Michael H. Schill
President and Professor of Law
11/6/2017: University escapes lawsuit damages over halloween blackface suspension:
That would be Auburn University. Frat boys, not a law professor, and it was 2002. My uninformed guess is that if Law School Dean Michael Moffitt doesn’t lift Professor Shurtz’s suspension soon and offer a heartfelt apology UO will pay out at least the $800K the Bowl of Dicks cost us – plus billable hours, of course.