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Editor: Paul L. Caron
Pepperdine University School of Law

Tuesday, November 8, 2016

Professor Althouse, Dean Amar & President Schill On Oregon Tax Prof Nancy Shurtz's Wearing Blackface To Halloween Party

Oregon 2

Following up on my previous posts (links below):

Ann Althouse (Wisconsin), About That Oregon Law Professor Who Wore Blackface as Part Of a Halloween Costume and Provoked Demands That She Resign:

I find it hard to believe that people are willing to be so vengeful over a single instance of bad judgment. Whatever happened to mercy and forgiveness? And what about our shared interest in living in a culture where people aren't fearful that their lives could be ruined if they said one thing wrong — even when they were trying to say something quite bland (like why can't we all get along)?

By the way, the professor, Nancy Shurtz, was not just a white person dressing up as a black person, she was also a woman dressing as a man, and a law professor dressing as a doctor. Why is the one crossover an outrage when the other 2 are not? How about some actual intellectual exploration of the subject of inhabiting alternate identities?

Vikram Amar (Dean. Illinois), First Monday Musings: On Academic Freedom, Administrative Fairness, And Blackface:

My first observation is that notwithstanding talk in some Supreme Court cases about the importance of “academic freedom” and the special role university faculties play in American democracy and society, it is not clear that even tenured public universities professors enjoy any special expressive latitude, at least under the First Amendment. Indeed, the First Amendment in many respects protects public university students significantly more than faculty, because students are regulated individuals (campuses are like small municipalities), whereas faculty are government employees. Settled First Amendment doctrine gives government far more latitude to regulate the speech of its workers than the speech of its citizenry, both because the smooth functioning of government is an interest that is weighed against free speech, and because (in some settings) government itself speaks through its employees. ...

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.

 AroundtheO, President Calls For Campus to Move Forward Together:

President Michael Schill sent the following message to all of campus:

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.

Thank you.
Michael H. Schill
President and Professor of Law

Prior TaxProf Blog coverage:

http://taxprof.typepad.com/taxprof_blog/2016/11/professor-althouse-dean-amar-president-schill-weight-in-on-oregon-tax-prof-nancy-shurtz-wearing-blac.html

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Comments

Oregon has made itself look very foolish with its handling of this matter and it appears it will only get worse.

Posted by: mike livingston | Nov 8, 2016 4:15:16 AM

Someone needs to bring this racist matter to the attention of Al Sharpton.

Posted by: Steve Karpa | Nov 8, 2016 4:34:21 AM