UO Admins use blacklist to ban people from UO Facebook page

Update: A few hours after I posted this a friend of the blog sent me UO’s blacklist, no charge. I have to say I’m disappointed in VP for StratComm Kyle Henley – the UOPD’s bowl of dicks list was far more creative.

Speaking of that memorable episode, the Honorable Judge David O. Carter, who presided over the case and the hilarious take-down of UO lawyer Andrea Coit’s Masonic conspiracy theory, is now making the news in LA:

But as the pandemic has unfolded, Carter, long known as brash, verbose and stubbornly hands-on, has been on a mission to force changes in the living conditions for the homeless people of L.A.

He is the judge assigned to a lawsuit filed last month against the city and county of Los Angeles by the L.A. Alliance for Human Rights. The group of business owners and downtown residents, among others, is demanding solutions to what they see as unsafe and inhumane conditions in encampments — especially given the pandemic.

On this particular Tuesday, two attorneys representing the county and several others representing advocacy groups decided to take Carter up on his offer to see whether the new hand-washing stations on skid row actually worked. In court, Carter had been frustrated that the stations the city was touting didn’t have water in them. He knew many were empty because he had checked them earlier.

4/22/2010: The FIRE report is here. From the appendix, OSU v. UO:

What happened when President Trump did this:

Who’s on UO’s blacklist? Let’s find out:

From: Bill Harbaugh <[email protected]>
Subject: Public records mirror request, social media censorship
Date: April 22, 2020 at 9:33:51 AM PDT
To: Lisa Thornton <[email protected]>

Dear Ms Thornton –

This is request for a copy of all documents provided in response to this request:

Social media accounts

Steinbaugh, Adam
Initial Request Date:
Records Provided
Request Completion Date:
I request the following records:

• A copy of the settings for the Facebook page maintained by the University of Oregon (available at https://www.facebook.com/universityoforegon). This list is accessible by (A) logging into the Facebook page as an administrator, and then (B) clicking “Settings” at the top of the official page. The URL should look like: https://www.facebook.com/universityoforegon/settings/?tab=settings.
• A copy of the list of people or pages banned from the Facebook page referenced above. This list is accessible by: (A) logging into the Facebook page as an administrator, (B) clicking “Settings” at the top of the official page, (C) clicking “People and Other Pages” in the left column, and (D) selecting “Banned People and Pages” from the drop-down menu. The final URL should look like: https://www.facebook.com/universityoforegon/settings/?tab=people_and_other_pages.


I ask for a fee waiver on the basis of public interest as demonstrated by https://www.thefire.org/survey-77-of-colleges-use-secret-social-media-blacklist-to-censor-the-public-in-violation-of-first-amendment/


Bill Harbaugh
[email protected]

IU provost uses her free speech rights to disembowel prof who used his

This sort of plain-spoken statement seems to becoming a more common response to complaints about faculty who express themselves offensively, and my understanding is that this is now the recommended course of action by the AAU, as it has been by the AAUP since McCarthyism if not earlier. In my view it’s a much more sensible approach than pursuing disciplinary actions, as UO did against Prof Shurtz. And it has the added benefit of using the First Amendment for its intended purpose – promoting open discussion no matter how repugnant to those with power – rather than violating it.

From InsideHigherEd here:

Indiana University at Bloomington will not terminate Eric Rasmusen, professor of business economics and public policy, for the “stunningly ignorant” views he expressed on social media. So said Provost Lauren Robel this week amid calls that Rasmusen be fired.

Rasmusen “has, for many years, used his private social media accounts to disseminate his racist, sexist and homophobic views,” Robel wrote in a statement. “When I label his views in this way, let me note that the labels are not a close call, nor do his posts require careful parsing to reach these conclusions.”

‘Not a Close Call’

At the same time, “We cannot, nor would we, fire Professor Rasmusen for his posts as a private citizen, as vile and stupid as they are, because the First Amendment of the U.S. Constitution forbids us to do so,” Robel said. That’s “not a close call,” either.

Grad student union unequivocally condemns University for hosting speaker

Turning Point is a well-funded right-wing agit-prop group that regularly tries to get me to repost links to their poorly written and researched stories about left-wing agit-prop professors, e.g. a recent one about the fact that no UO faculty give money to Republican candidates. (The $5K that Chuck Lillis gave to Ben Carson doesn’t count, since Lillis is just a trustee.)

Even worse, they didn’t cite my earlier, seminal work on this. Desk reject. I tell them that I’ll repost their stuff if they’ll add me to their Professor Watchlist of dangerously liberal faculty, which would give me some street cred with the faculty, but I think they’re on to me.

TP sponsors a UO student group, which brought a speaker to campus Friday. The Daily Emerald has the story here:

… Cabot said that it is hard to stay conservative on campus with social and academic pressures, but those who are end up more informed politically. He said he worries that liberal students are not being exposed to ideas from all areas of the political spectrum.

“When [liberal students] do finally hear conservative ideas, they don’t know how to handle them,” Cabot said.

As is demonstrated by this op-ed from the GTFF grad student union exec committee, here:

The elected leadership of the Graduate Teaching Fellows Federation unequivocally condemns the University’s hosting of Cabot Phillips’s “Liberal Privilege” tour. For over forty years, the GTFF has committed itself to fostering an environment of academic freedom, rigorous debate, and the life of the mind for graduate employees and the wider campus community. Phillips and his associated organizations “Campus Reform” and “Turning Point USA” are only interested in cheap political theater at the expense of UO’s students and employees, not good-faith exploration of political ideas. …

For the record, I hope this means that GTFF is not going to be engaging in cheap political theater by chanting and drumming all over campus next time they go on strike.

UO administration removes CO2 Divest banner from Johnson Hall bush

10/10/2018: Reposted for the historical record.

When you’re running down our First Amendment, you’re walking on the fightin side of me:

4/6/2016 update: The day Merle Haggard died? Have our administrators no sense of patriotism? Or irony? More on the troubling response from the UO Foundation CIO here.

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3/29/2016 update: Press Conference on the Johnson Hall steps, Facebook event page here.

Our students have been conducting a quiet CO2 Divestment sit-in the Johnson Hall lobby for months. The administration has banned their banner from the bush outside JH, and now the students are apparently going to reassert their free-speech rights.

Do they have the right to put up the banner? I’m no lawyer, but here’s some UO history. Back in 2010, former UO GC Randy Geller wanted to change UO policy to implement “Free Speech Zones”, outside of which First Amendment rights would be tightly controlled. This was in reaction to the Pacifica Forum incidents. Geller’s policy starts on page 13 here. It’s funnier than Animal Farm.

Free speech is indispensable, but:

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UO will restrict Free Speech, except inside the Free Speech Zones, and even then you’ll need insurance and maybe a reservation:

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No unapproved banners outside free speech zones – and don’t even think about posting the video on the internets:

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Oh yeah, no camping or chalk either. Chalk? What’s that about?

All of Geller’s silly language above was rejected by the UO Senate and it is not UO policy. 

The Facilities Use Policy that was adopted instead is at http://policies.uoregon.edu/policy/by/1/04-facilities/facilities-scheduling. It turned Geller’s policy on its ass, by limiting the areas UO can control to buildings and “scheduled outdoor spaces” i.e. the EMU amphitheater. The Senate rejected all of Geller’s anti-free speech, anti-banner, and anti-chalk language.

The Facilities Use policy is paired with the powerful Free Speech and Inquiry policy, at http://policies.uoregon.edu/policy/by/1/01-administration-and-governance/freedom-inquiry-and-free-speech:

Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community. Further, as a public institution, the University will sustain a higher and more open standard for freedom of inquiry and free speech than may be expected or preferred in private settings.

How much clearer could this be? It’s not like the CO2 Divestment students are doing anything reprehensible, like using chalk.

3/13/2016: UO bans students’ fossil fuel divestment banner from a bush? Continue reading

Student Conduct Committee discusses Senate’s Student Collective Resolution

This is the committee that the Board of Trustees established to replace the former Senate committee, when they took power for student discipline away from the faculty back in 2015. Its mission:

The Student Conduct Committee shall be responsible for recommending to the Board of Trustees of the University of Oregon policy or administrative changes in any aspect of the Student Conduct Program …

a. With the consent of the President of the University, the Student Conduct Committee may sub-delegate jurisdiction to handle violations of the Student Conduct Code to University officials, committees or alternative processes. In all instances such sub-delegation shall be defined by the Committee in terms of specific jurisdiction, enforceable regulations, and maximum disciplinary sanctions that may be imposed.

The Board wants to consider changes to the Student Conduct code in March. Sandy Weintraub runs the meeting in the absence of a quorum to elect a chair. There are two Emerald reporters here.

There is some preliminary discussion of the Senate resolution, which states:

2.3 BE IT FURTHER RESOLVED that the Senate calls on the the Student Conduct Code and Community Standards Committee to ensure that the Student Conduct Code is revised to include student peers in judgements on disciplinary cases involving free speech, as required by the Policy on Academic Freedom. Given the importance of free speech and academic freedom, the Senate urges the Committee to develop Student Conduct Code procedures distinct from standard discipline charges; and

The wonderful “I hit it first” episode comes up as an example of how the exercise of free speech may inspire multiple charges from the Conduct Office. Link here.

Discussion revolved around the possibility to use the appeals process to get peer representation. But there are very limited opportunities for appeal in the current code, which essentially gives the Student Conduct Code Administrator the power to reject a University Appeals Board decision.

The Committee agreed to postpone additional discussion until the next meeting, with student members present. The committee will meet again Feb 16.

Student Conduct Office drops charges after FIRE free-speech investigation

11/28/2017: Just thought I’d repost this classic.

8/26/14: Four word joke nets UO student five unconstitutional bad-conduct charges:

Saul Hubbard has an excellent report on this in the RG. Peter Bonilla of FIRE notes: “Universities have never prevailed in court when defending their [anti-free speech] codes,” he said. “Every single time there’s a court challenge, they lose.” Of course that won’t stop Sharon Rudnick from collecting $300 in UO tuition money for each billable hour trying, just as she did with Gottfredson’s academic freedom restrictions.

If you’re a UO police officer keeping a list of people who should “eat a bowl of dicks” you get a promotion, high paid legal help from Dave Frohnmayer’s law firm, and UO Chief Strategic Communicator Tobin Klinger will write an angry letter to the editor denouncing the reporter for printing the story.

But UO’s rules are a little tougher for students. The Foundation for Individual Rights in Education has the story:

EUGENE, Oregon, August 26, 2014—The University of Oregon (UO) has filed multiple, blatantly unconstitutional conduct charges against a female student who jokingly yelled “I hit it first” from a dormitory window. The student, who wishes to remain anonymous, contacted the Foundation for Individual Rights in Education (FIRE) for help. FIRE is calling on UO to immediately dismiss all charges against the student and reform its unconstitutional speech policies.

…On June 9, 2014, the female student in question was visiting with friends in UO’s Carson Hall dormitory. The student, looking out of the dormitory window, spotted a male and female student walking together (she did not know either of them) and shouted “I hit it first” at them in jest. The female of the couple responded with two profanities and the couple reported the student’s comment to the Resident Assistant of the dorm. The Resident Assistant located the student and insisted that she apologize to the couple for her remark.

The student readily obliged. That did not end the matter, however. On June 13, the student was shocked to receive a “Notice of Allegation” letter charging her with five separate conduct violations for her four-word joke. In addition to dubious allegations of violating the residence hall’s noise and guest policies, UO charged the student with “[h]arassment,” “disruption,” and “[d]isorderly conduct.” After being presented with these outrageous and unconstitutional charges, the student contacted FIRE. …

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Actually, thanks to Richard Lariviere UO has a very clear and strong free speech policy, but Doug Blandy is in charge of it, and as is often the case at UO implementation leaves something to be desired.And this all raises a very important question: Do these OARs trump official UO policies that have been adopted by the Senate and signed by the President?

8/28/2014 update: UO drops “I hit it first” charges but keeps them on student’s permanent record

From FIRE, and an RG story here:

UO did not respond to FIRE’s August 1 letter or to a previous June 5 letter regarding its problematic speech codes. In an August 27 article on the student’s case in The Register-Guard, a UO spokesperson defended the university’s Student Conduct Code as “appropriate” and claimed that it “doesn’t conflict with speech laws,” despite FIRE’s overwhelming evidence to the contrary. Later that day, however, UO informed the student via email that it was removing the charges against her. While still claiming that her “behavior may be a violation” of the UO Student Conduct Code, no record of the incident will be noted in her file and no further action will be taken.A first small step towards sanity from the Coltrane administration, or just another reminder that ridicule in the national press is the only way to make Johnson Hall do the right thing?

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7/23/2015: The Foundation for Individual Rights in Education wins another one:

ATLANTA, July 23, 2015—Today, more than eight years after his unjust expulsion, student Hayden Barnes’ federal civil rights lawsuit against Georgia’s Valdosta State University (VSU) and former VSU president Ronald Zaccari concluded with the announcement of a $900,000 settlement. 

In the spring of 2007, Barnes was expelled from VSU by Zaccari for a satirical environmentalist collage he posted on his personal Facebook page. With the help of the Foundation for Individual Rights in Education (FIRE), Barnes fought back by filing a civil rights lawsuit in 2008 against the university, Zaccari, other VSU administrators, and the Board of Regents of the University System of Georgia. 

“After eight years, and one of the worst abuses of student rights FIRE has ever seen, Hayden Barnes has finally received justice,” said FIRE President and CEO Greg Lukianoff. “Thanks to Hayden’s courageous stand, would-be censors at public universities nationwide have 900,000 new reasons to respect the free speech and due process rights of their students.”

“I am pleased to have finally reached a resolution. It has been an epic journey,” said Barnes. “However, it was a worthwhile endeavor because I know as a result of this case other students will have their constitutional rights respected. I sincerely appreciate the work of my counsel and of FIRE, both of whom were instrumental in achieving justice.”Barnes’ years-long ordeal began on May 7, 2007, when Zaccari—angry with Barnes’ peaceful protest against the planned construction of two parking garages on campus—expelled him without a hearing. Absurdly, Zaccari tried to justify Barnes’ expulsion by claiming that a cut-and-paste collage Barnes had posted to Facebook was a “threatening document” and that Barnes presented a “clear and present danger” to VSU. …

Meanwhile UO is still on FIRE’s redlight list for free speech. We’ve got a great policy, but as you can see above some administrators are a little confused about what free speech means:

Student protesters of Pres Schill’s speech unlikely to take guilty plea offer


Yesterday three of the students who received discipline letters (copy below) talked to the Senate about why  they were going to fight the student conduct charges, rather than plead guilty and accept the administration’s rather mild punishment – a meeting with administrators and a note in their permanent record.

The first student speaker – nervous but quite well spoken – explained how after receiving the discipline letter he’d had to spend 4 hours that he’d wanted to spend on his physics homework talking to lawyers. All three explained why they thought it was worth fighting the charges. Video here:

There are also stories in the Daily Emerald here, and InsideHigherEd here.

10/31/2017: Administration presses conduct code charges against Schill protesters

Posted yesterday on the UO Student Collective facebook page: https://www.facebook.com/UOstudentcollective/posts/1709555705729615

Today, members of the University of Oregon Student Collective have been sent notices from the university administration. We have been notified that students will be charged for participating in student protest and dissent against the administration.

We have been told that we have two options: either submit to whatever guidelines they give us and silence ourselves or be formally charged by the institution of the University of Oregon.

This will lead to a criminalization of protest and dissent. Students are being punished for speaking out and using their voice. The UO Student Collective will not accept any guidelines that take away our freedom to dissent and protest.

The UO Student Collective will be contesting the allegations. The voices of the students are not a disruption to the business of a University, the voice of the students is the business of a University. Protesting is not a crime. Fighting for the students is not a crime.

If anyone else has gotten an email from the administration threatening student conduct action, please let the UO Student Collective know. We will fight for you.

The University of Oregon Student Collective is here to for the students.

Support this movement by sharing this post. Post #iamtheuostudentcollective. Come to our meetings. Make your voices heard.


The Office of Student Conduct and Community Standards at the University of Oregon has received information concerning your alleged involvement in an incident on October 6, 2017 with the following brief description:

You took the stage in the EMU Ballroom in a manner that caused a University of Oregon event (President Schill’s State of the University Address) to be suspended. You were asked on multiple occasions to cease the behavior, and failed to stop after being clearly directed to do so by Dr. Kevin Marbury, Interim Vice President for Student Life.

Based on this information, your behavior may have violated the Student Conduct Code. The UO Student Conduct Code ensures your rights as a student are protected. While you are entitled to respect and civility, you also have responsibilities to the community. The Student Conduct Code outlines these responsibilities and the university’s expectations for your behavior as a UO student. Below are the specific violations of the Student Conduct Code that may be applicable to this incident:

1. Disruption of University: Engaging in behavior that could be reasonably foreseen to cause disruption of, obstruction of, or interference with the process of instruction, research, administration, student discipline, or any other service or activity provide or sponsored by the University.

2. Failure to Comply: Failure to comply with the reasonable directions of public officials acting in performance of their duties on University Premises or at a University Sponsored Activity when such conduct poses a danger to personal safety or property or obstructs or impairs educational or other institutional activities.

I am offering you two options to resolve this matter:

OPTION ONE – Special Option for Resolution
You are invited to participate in small group dialogue with a variety of Officers of Administration who have expressed interest in meeting with you to hear your concerns and work with you to try to address them. This educational outcome will be scheduled during mid-to-late November.

By choosing this option, you are accepting responsibility for your actions and agreeing to participate in the small group dialogue noted above. As a result, rather than a sanction, you will receive written warning for your behavior.

As long as you honor this agreement and attend the group session, there will be no formal conduct process and this will not result in a student conduct record.

To choose this option, please respond to this email within 7 days of today’s date. You will receive additional information within the next few weeks about the small group dialogue session and how to RSVP.

OPTION TWO – Administrative Conference
By choosing this option, you are electing to contest the allegation. You will need to meet with me, or another decision-maker, to discuss the information we have received. This is called an administrative conference and is your opportunity to present additional information to ensure we have a full understanding of the situation. Following the meeting, a decision would be made regarding your responsibility for the violations listed above based on all available information and a “more likely than not” standard. If you are found responsible, you will be assigned an action plan (called sanctions under the Student Conduct Code).

To choose this option, please call (541)346-1140 by November 6, 2017, which is 7 days from the date of this letter, to schedule a meeting.

Additional things you should know:

– If you fail to respond to this notice within 7 days, I will make a decision based on the information I have, without your input or agreement.

– Normally, when a student is found responsible for a conduct violation, a $30 administrative fee is assessed to the student’s account. In this case, however, we have decided to waive the administrative fee. Neither option will result in an administrative fee.

– Students have the right to an advisor at any stage of the student conduct process. Your advisor may not be another student who is involved in the alleged behavior. For more information about advisors in the student conduct process, visit our website (http://dos.uoregon.edu/files/Advisors.pdf).

For more information about the Student Conduct Code, please visit http://conduct.uoregon.edu, or e-mail [email protected] with any additional questions.

Katy Larkin
Associate Director, Student Conduct and Community Standards

UO Student Collective member explains protest at State of Univ speech

Update: Thanks to a reader for pointing me to another opinion piece in the Emerald on this. It’s not clear if the student is a member of the collective, but she is supportive:

On Oct. 13, University of Oregon President Michael Schill wrote an opinion column for the New York Times on the protest that happened earlier this month. His column criticized the students who interrupted his State of the University Address, stating that silencing him was not a proper form of protest. Schill ignores the position of power he has as the university president and dismisses the different set of regulations that are given to him as a leader of this institution.

In his column, Schill wrote, “One of the students who stormed the stage during my talk told the news media to ‘expect resistance to anyone who opposes us.’ That is awfully close to the language and practices of those the students say they vehemently oppose.” The reality is that these students are marginalized students from an institution that Schill leads. They demand respect and fair treatment after almost a century of neglect. The protester said this because they were done with the mistreatment and wanted to make it clear that they will continue to fight for the rights of all marginalized students on campus. ….

In the Emerald here:

“Nothing about us without us.” That’s what 80+ students and I chanted as we took the stage on Oct. 6. President Schill has ignored student concerns for a long time, so we decided to protest in a way that he simply could not overlook. …

Law prof Nancy Shurtz in the Oregonian on Halloween, free speech, diversity

UO Law Professor Nancy Shurtz has some hard-won and interesting thoughts on the intersection of Halloween, free speech, and diversity in her op-ed here.

…Halloween costumes have also been a hot-button issue on college campuses in recent times, brought into the fore by the case of Yale University lecturer Erika Christakis two years ago. Christakis, who was a residential overseer in a Yale dormitory, wrote an email to students opposing arbitrary restrictions on costumes, arguing instead for student self-policing and open dialogue. For her trouble, a faction of students branded her a racist for defending “offensive” costumes and demanded her ouster by the university. The Yale administration did little to buffer her from two months of relentless character attacks and harassment, after which she did resign.

I experienced my own Halloween ordeal just a year ago this week. I hosted a private party in my home, attended by friends, a few university colleagues, and some law students. …

… When free expression is tethered, administrators tacitly endorse the tactics of ideological bullies, the self-appointed dictators of truth, and cheat the larger student body that hears but one bellowing voice. Benjamin Franklin once wrote: “If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed.”  This Halloween, let’s see through this masquerade of communicative suppression.

Nancy Shurtz is the Bernard A. Kliks professor of law at the University of Oregon School of Law.

President Schill’s free-speech op-ed in NYT skips over blackface, silencing of Duck athletes, efforts to stop peaceful sit-ins

The NYT op-ed focuses on the “UO Student Coalition’s” efforts to prevent him from giving his State of the University address.

Information on the administration’s botched attempt to discipline the student protestors is here.

Information on his administration’s treatment of Prof Nancy Shurtz for her stupid and offensive – but constitutionally protected – attempt to dress as a black doctor at a Halloween party last year (to promote his book on racism in the medical profession) is here.

Information on the Duck athletic department’s efforts to prevent their athletes from speaking to student reporters is here.

And so far as I can tell basketball coach Dana Altman and football coach Willie Taggart have suffered no repercussions for their efforts to discourage athletes from expressing political beliefs.

Update: Then there’s the administration’s April 2016 fight against the “Divest UO” group’s protest, here. They followed this up with a proposed policy restricting the time, place, and manner of free speech, which they dropped in the face of UO Senate opposition in spring of 2017.

Law dean who attacked Schill’s response to blackface incident gives nuanced view of best response to disruption of Schill’s State of Univ speech

Back in January, Erwin Chemerinsky, a well known legal scholar and at the time the UC-Irvine law school dean, published this opinion piece castigating UO President Mike Schill’s response to the Halloween blackface incident:

Worries about offensiveness threaten free speech on campuses

All too often campuses are forgetting one of the most basic principle of the First Amendment: Speech cannot be punished simply because it is offensive, even deeply offensive.

The most recent example of this occurred when an investigative report for the University of Oregon concluded that a professor had created a “discriminatory learning environment” by wearing blackface at a Halloween party in her own home. Earlier the professor had been suspended for doing this. No doubt many were offended by her actions, but unquestionably she was engaged in speech protected by the First Amendment and any discipline is unconstitutional.

In October 2016, University of Oregon law professor Nancy Shurtz hosted a Halloween party for about 25 students, faculty members, alumni and family members. Her costume was wearing black makeup on her face and hands, an Afro wig, and a white doctor’s lab coat. She told her guests that she was inspired by the anti-racist message of Damon Tweedy’s memoir about a black man starting his medical career, “Black Man in a White Coat.” She also had recently attended her daughter’s white coat ceremony — a tradition that begins a medical student’s first year — and she noticed an almost complete absence of black men. She said that she meant to draw attention to the lack of diversity in higher education.

Word quickly spread of Professor Shurtz’s costume and by the next day, she was condemned by students, faculty and University of Oregon President Michael Schill in a message expressing outrage to the entire university community. Shurtz was suspended from teaching pending review. Within a few days of the party, 23 law school faculty members wrote a letter urging Professor Shurtz to resign. It concluded: “If you care about our students, you will resign. If you care about our ability to educate future lawyers, you will resign. If you care about our alumni, you will resign.”

University of Oregon commissioned an investigation which concluded: “We find that Nancy Shurtz’s costume, including what constitutes ‘blackface’ through use of black makeup, constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment.”

The report found that her costume exacerbated racial tensions on campus in a way that had a disproportionate impact on students of color, because “minority students [felt] they have become burdened with educating other students about racial issues and racial sensitivity,” and because some students used “other offensive racially based terminology during class times in the context of discussing this event and broader racial issues.”

Professor Shurtz exercised poor judgment in choosing her costume and not realizing that some would be very offended by it. But poor judgment and offending people cannot be a basis for a university punishing speech. In countless cases, the courts have been adamant that speech cannot be punished because it is offensive. The Nazi party had the right to march in Skokie, Ill., despite the offense to its largely Jewish population and the many Holocaust survivors who lived there. Members of the Westboro Baptist Church have the right to go funerals of those who died in military service and express a vile, anti-gay and anti-lesbian message. The government would have almost limitless power to censor speech if offensiveness is a sufficient ground for punishing expression.

Likewise, it cannot be that a university can punish a professor’s expression on the grounds that it offends students and thereby will make their learning more difficult. That is the primary justification for punishing Professor Shurtz.

If that is enough to justify suspending or removing a professor, it would provide a basis for doing so any time a faculty member participates in activities that make a significant number of students uncomfortable.

Under this rationale, campuses in the 1950s would have been justified in firing professors who were perceived as having communist leanings or in the 1960s could have removed professors who participated in the civil rights movement on the ground that such speech made students uncomfortable and interfered with their learning.

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.

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.

Chemerinsky is now dean of Berkeley’s law school, and today he and Howard Gillman of UC-Irvine have an op-ed in the Chronicle (gated if off campus), about speech that disrupts the speech of others. It uses the student protest of President Schill’s State of the University speech as an example of the sort of disruption that need not be tolerated, but perhaps should be:

Does Disruption Violate Free Speech?

When student protesters prevented President Michael H. Schill of the University of Oregon from delivering his State of the University speech this month, the group explained, “Free speech is the right of individuals and communities to express themselves without repression from the state. The students are not the state nor the repressors. Taking to the stage and using this platform was an act of free speech — not a violation of it.”

… Contrary to the view of these protesters, individuals do not have a right to prevent others from speaking. It has long been recognized in constitutional law that the “heckler’s veto” — defined as the suppression of speech in order to appease disruptive, hostile, or threatening members of the audience — can be as much a threat to rights of free expression as government censorship.

If audience members had a general right to engage in disruptive or threatening behavior by using loud, boisterous, or inciting speech, it would give any determined individual or group veto power over the expression of any idea they opposed. Only the most benign or inoffensive ideas would be expressible. It would empower people to believe, “If we can’t get the government to censor the speech, then we’ll do it ourselves.”

The only protections against the heckler’s veto are to require officials to make every effort to control the disrupters or to deter their efforts by treating the disruption as a punishable breach of the peace. Of course, it is possible that, despite best efforts, safety or public order cannot be maintained without calling an end to a controversial event. But this should be a last resort, only after exhausting all efforts to control those who are creating the threats against the lawful expression of speech.

… Importantly, however, prohibitions against disruptions also have their limits.

For example, protecting a controversial speaker assumes that the speaker has a preferred right to speak in a particular location at a particular time. When that is not the case — for example, in a true, open public forum on campus grounds, where anyone is allowed to be and to talk — no one speaker has any more rights to express a point of view than any other. If a Christian fundamentalist preacher were to use an open public space on a campus to preach against nonheterosexual activity, there is no reason why members of the campus community could not surround the preacher and enter into a boisterous back-and-forth.

… The reason recent campus controversies are different is that, in those cases, the campus has created a process whereby particular people (for example, student sponsors and their invited guests) are given a preferred right to have access to specific campus venues through a reservation process. Once the campus has followed its policies and assigned rooms for particular activities, then those who have secured the reservations have recognized claims to that space at those times.

In such a limited public forum, and in other places on campus where certain activities are assigned and recognized, those who have been given access to the space for certain purposes have the right not to be disrupted in that activity.

… Also, while opponents cannot disrupt a talk by an authorized controversial speaker, it is true that the speaker has no right to a cooperative or supportive audience.

Those who disagree are allowed to express their disagreement in ways that nevertheless allow the speakers to have their say. In the easiest case this includes the right to hold counterprotests or competing events, or distribute critical leaflets to audience members. But it also includes expressing disapproval as a member of the audience, as long as that disapproval does not undermine the rights of the speakers and their sponsors.

There are always judgment calls in cases of disruptive protests. We favor a more accommodating approach when protesters focus on administrators, for practical reasons rather than because of the First Amendment. Campus leaders have many avenues to express their views, and so an occasional tactical decision to shrug off the disruption is understandable.

But accommodation is much less appropriate when some members of the campus are attempting to prevent others from exercising their rights. In such cases, heckler’s veto principles argue in favor of strong campus rebuffs of the claims of the disrupters. Otherwise, vulnerable or controversial opinions will never be expressible on a campus. And that would represent an abandonment of foundational principles of modern American higher education.

Simply put, the right to speak does not include a right to use speech to keep others from speaking.

Admin declares student protester guilty, then starts conduct code investigation

10/17/2017 update:

I’m no law professor, but I think this is the reverse of the preferred sequencing.

Page down for the video of UO spokesperson Tobin Klinger last Friday, declaring that “the demonstration actually violated university policy”.  Today the “UO Student Collective” facebook page posts this message from Sandy Weintraub, Director of Student Conduct, calling one of the students into his office to begin the process of an investigation under the student conduct code:

On Oct 15, Senate President Sinclair wrote UO President Schill the following:

Dear President Schill:

I’ve had a number of conversations around campus with both students and faculty regarding the student protest of the State of the University address.

Here are some reflections:

The statement from Tobin Klinger to the Oregonian  that the protest was in violation of the student conduct code is unhelpful and has irritated many faculty. Faculty see Klinger as an un-academic public relations spokesperson who has little credibility with the students or the faculty. However, he is an official spokesperson, and so we assume he was speaking for the administration. As such his statement could be taken as an abrogation of due process. This removes the veil of faculty oversight of student discipline, and there is simmering resentment that this power was taken from faculty by the Board of Trustees. Any unilateral administrative establishment of discipline on an issue that revolves around speech is a hornets nest that is best left un-kicked. We do understand that it may sometimes be necessary to “read the riot act” to students to notify them (or others) that continued assembly will be dealt with under the student conduct code.

My recommendation would be to have Tobin clarify his remarks and to state publicly that the university has no plans to charge any of the students in the protest with any conduct violation. Were actual conduct charges to be brought, I do not think you would have the support of the majority of the faculty nor students, and I think the Senate would react in a manner which you would find unproductive. A couple senators have already threatened a resolution to be introduced next Wednesday; we have a busy agenda that day and I would prefer to stay on task.

As you know, I have invited [the UO student collective] to come to the Senate for a brief 5-minute presentation followed by a 5-minute question and answer period. [The UO student collective] has not responded yet. In conversation with faculty, more individuals agree that this is the correct course of action for the Senate than agree with you that this is rewarding bad behavior. I will not argue that we are not rewarding bad behavior, because I see your point, but I think more people are moved by the argument that these students have fewer avenues to air their grievances than you or I, and that this was a legitimate protest.

I have been reflecting on my formal invitation of this student group to the next Senate meeting. Had I a do-over, I would take the advice of Frances White and merely indicate to this group that the Senate is a public forum on campus and that any group of students should be able to get on the agenda (with instructions on how to do so). This would allow the students an avenue for a public conversation without officially sanctioning it. I am unwilling to rescind my invitation to the student group, but I will hold onto this lesson for future use.

Thanks for considering my recommendations and for helping find a productive way out of this tricky situation,

Chris Sinclair, Assoc. Prof. Math, Senate President University of Oregon

Meanwhile, on the same day as the protest, the administration updated its website on Time, Place and Manner restrictions on free speech. They are calling these guidelines and procedures, not policies, because they agreed last year not to implement them as a policy, after the Senate raised numerous objections.

Until 2014, the UO Faculty had responsibility for the Student Conduct code. The Board of Trustees took that away from us as part of their Delegation of Authority, helped out by the faculty board member Susan Gary (Law) who failed to notify the faculty about the power-grab.

The new student conduct code even allows the administration to modify the  procedures retroactively, and apply them to existing student discipline cases:

All revisions to Student Conduct Code procedures, including but not limited to jurisdictional revisions, shall apply retroactively to pending Student Conduct complaints, filed on or after September 11, 2014

10/12/2017 update: Student Conduct Judge Tobin Klinger finds protest violated conduct code

Just kidding. Tobin Klinger is UO’s chief PR flack, not a Student Conduct Judge. He is not responsible for enforcing the student conduct code, nor has anyone at UO conducted any sort of investigation as to whether or not the student conduct code was violated, or whether any such violation was significant enough to supersede the UO policies on freedom of speech and academic freedom.

So what in the world was Klinger doing, in his official capacity as UO spokesperson, telling an Oregonian reporter 5 minutes after the administration suspended President Schill’s speech, that

“.. the demonstration actually violated university policy…”

Speaking in my private capacity as a blogger, I think the administration can make a plausible case that it did violate the code (and the Freedom of Inquiry and Speech policy). If that case succeeds they can then discipline the students accordingly.

But that case is going to be harder to make given this official statement from Klinger, which the students can argue is prejudicial.

10/9/2017 update: Small, ineffective, and reflects poorly on the student body

The Oregon Daily Emerald editorial board rarely posts editorials. They have written a good one on Friday’s protest:

Continue reading

Presidents and provosts gather in their safe-space to talk free speech

Apparently the organizer of the event, Chicago Provost Daniel Diermeier, thought the administrators wouldn’t come or wouldn’t speak freely if they thought their comments would be public. Insider Higher Ed has the report here:

… Just last week, students shouted down talks at Columbia University and the University of Michigan. Those doing the shouting down were generally students aligned with the political left, but supporters of President Trump also shut down a talk at Whittier College by California’s attorney general, Xavier Becerra, shouting “America First” and “build that wall” to prevent him from answering questions. And those events followed the interruption of speakers (sometimes preventing events from taking place at all) at the College of William & Mary, Texas Southern University, the University of Oregon and Virginia Tech.

With these events becoming increasingly common, the University of Chicago invited presidents and provosts from a range of institutions to come to campus this weekend for a closed-door discussion of how higher education should respond. The University of Chicago has stated in a series of statements from its leaders and monographs on its history that free expression must be respected on campuses, no matter how controversial the idea being expressed. …

Meanwhile Daily Emerald has an op-ed here, from journalism student Chayne Thomas, arguing for the free speech rights of the students who disrupted President Schill’s State of the University speech:

University of Oregon President Michael Schill was quick to dismiss the protesters of his Oct. 6 State of the University Address on the grounds that “they don’t understand the value of free speech.” While I believe he may be well-meaning in his desire to “teach all of our students and members of the community the value of free speech and tolerance,” Schill fails to acknowledge the defect in his fundamental misunderstanding regarding freedom of speech. Namely, he ignores the fact that speech is tied to access. It is strange that Schill, who has the loudest voice on campus and multiple platforms at his disposal, can claim that his rights and freedoms are being infringed upon, while other’s voices are being silenced.

Marginalized students don’t have a voice on campus, but Schill was able to post a statement on the school website, release a video and directly email all students regarding his speech. He also swung private conversations where $50 million suddenly appeared out of mid-air — conversations that didn’t include student voices. Students don’t typically have access to platforms and forums for speech sanctioned by the university, and this needs to change. …

This is a counter to the Emerald editorial arguing against the protesters:

… Friday’s protest painted the UO student body as unwilling to listen to the viewpoints of others. College students around the country have been criticized recently for shutting down the speeches of controversial right-wing figures such as Milo Yiannopoulos and Ben Shapiro.

What happened Friday was worse. Schill wasn’t there to spew hate-filled rhetoric – he was a university president doing his job.

The organizers, whose gripes include Schill’s “acceptance of fascism and neo-Nazis,” “insurmountable increases to student tuition,” and “ignorantly happy-go-lucky attitude” wrote in their Facebook group for the event that “radical change requires radical action.”

We got the radical action. Still waiting on the radical change.

The organizers failed to suppress anything, as UO released a pre-recorded version of the speech minutes after its cancellation. Instead, the event made headlines for its spectacle and painted the student body as rude, unfocused and angry about … just about everything.

Students who are unhappy with school administration should absolutely protest and make their concerns heard.  The repeated tuition increases are a legitimate gripe, and Schill comes across as tone deaf when he tells students to ask their parents for money or take on more debt. But shouting him off the stage isn’t the way to address those concerns.

The Black Student Task Force has shown that respectful protest can effect change on this campus. Not all of their demands have been met, but they got things done by showing a willingness to work with administration rather than drown it out.

[UOM: After Missouri the administration was terrified by the potential impact of a black student protest that included Black student-athletes. The administration was desperate to work with them.]

For change to happen, there must be dialogue with those in charge of making the changes. Suppressing the speech of others is not how to move forward.

For on the protest and the prejudicial response from UO spokesperson Tobin Klinger see the “free speech” tag.


MLK Jr’s life and words demonstrated the importance of free speech far beyond the power of that racist little pissant Jeff Sessions to add or subtract

Call me a cynic, but it’s as if Trump’s AG Jeff Sessions is trying his best to destroy support for free speech among college students. That can’t be his goal, can it? What evidence is there, other than his lifetime of efforts to deny people their voting rights?

The NYT on Trump’s AG Sessions speech on campus free speech, here:

Speaking at Georgetown University’s law school, Mr. Sessions condemned the designated free-speech zones that have popped up on campuses across the country and seized on the case of an evangelical Christian student who had been restricted from speaking about his religion. He also sided with provocative writers who have been shut out at the University of California, Berkeley, which has been at the center of the debate.

“A national recommitment to free speech on campus and to ensuring First Amendment rights is long overdue,” Mr. Sessions said, addressing an audience that included students wearing tape over their mouths in protest of the Trump administration. “Protesters are now routinely shutting down speeches and debates across the country in an effort to silence voices that insufficiently conform with their views.”

Here’s Coretta Scott King on Jeff Sessions 30 years ago, when he was trying unsuccessfully to become a federal judge, outing him for his efforts to deny voting rights to citizens of Alabama:

And here’s Martin Luther King’s last speech – on the importance of the First Amendment for what he was able to accomplish for America. He died for it the next day:

Duck PR flack Dave Williford retires, UO reporter Kenny Jacoby wins prize

5/3/2017: Emerald reporter Kenny Jacoby’s stories about the arrests of UO’s student athletes for various assaults got him an award for investigative reporting.

UO got even more bad national press when the story came out about how Duck football flack Dave Williford had tried to take away Jacoby’s press pass over his reporting.

Now the Ducks are announcing that Williford will be retiring on June 30th.

Jacoby will be back as Emerald Sports Editor in the fall.

11/20/2017: Duck PR flack Dave Williford threatens to revoke student-reporter’s press pass

The reporter’s special crime? Publishing this story on alleged assaults by Duck athletes, including a locker-room fight that left a teammate with a concussion and an alleged attempt to strangle his girlfriend, and an alleged attack by another player that left an alumnus with a broken arm. The interview with the Daily Emerald’s Kenny Jacoby by the Oregonian’s John Canzano is here:

… Kenny Jacoby, the sports editor of the Emerald, joined me on the radio show on Friday to download on the story, and how his team’s access was threatened by the University of Oregon athletic department after the student newspaper contacted a key player involved directly. (UO failed/refused to coordinate an interview request so the students say they reached out themselves).

“We were actually called into the athletic department office and we were told if we do that again we were going to get our credential pulled,” Jacoby said. …

I know of one other Duck reporter who was also told to toe the line on reporting or have their access revoked. I know many former Emerald reporters read this blog, and if any of you have similar stories please email me at uomatters at gmail.

Williford is the same duck flack who took it upon himself to masquerade as a *UO* spokesperson in attacking the statistics used in UO economist Glen Waddell’s paper on football and bad grades, as reported in the NYTimes.