Ofer Raban (Oregon), who was not one of the 23 law professors who signed a letter demanding that Nancy Shurtz resign her tenured faculty position for wearing blackface to a Halloween party in her home, has published an op-ed in The Oregonian, A Setback for Free Speech at University of Oregon:
Last week, the University of Oregon released and officially adopted a legal report regarding a law professor who donned a Halloween costume representing an African-American doctor. University leaders suspended the professor and commissioned the report from a Portland law firm, which worked under the "direction and guidance" of university lawyers.
The report recognized that the professor, who has a history of advocacy for minority rights, donned the costume at a party at her home in order to honor an African-American author and call attention to the scarcity of African-Americans in medical schools. The report also noted that she was genuinely shocked and surprised at the negative reactions to her costume, and promptly apologized.
But the report concluded that the costume constituted racial discrimination and harassment in violation of university rules. It goes on to claim that the professor's expression is not shielded by university rules protecting free speech and academic freedom, nor by the Constitution's freedom of speech.
This is a deeply flawed report, and the university has made a legal and moral mistake in adopting it.
Most astonishingly, the report fails to address the issue that makes this case so legally fraught: namely, that the costume was worn to advocate for racial equality. While the report concedes that important fact, its legal analysis fails to take it into account. For all we know, the analysis would have been the same if the professor had donned the costume at a Ku Klux Klan rally. Moreover, the report not only concludes that a costume intended to advocate for racial equality constitutes racial discrimination, but also makes no attempt to justify this counterintuitive conclusion. Whatever one thinks of that question, the failure to address it is preposterous. ...
Why were university administrators so keen to adopt this flawed report? Perhaps because the administration itself was responsible for much of the resulting educational disruption, including student outrage, damage to the law school's reputation and a toxic law school atmosphere.
After all, when the Halloween event first became known, administrators repeatedly failed to inform students of the actual intent behind the costume (of which they were fully aware), or of the professor's record as a defender of minority rights. And when these facts surfaced, officials doubled down by claiming that her intent did not matter, a position now echoed in the report. ...
Why was the administration's response so conducive to inflaming rather than calming emotions? Admittedly, some misguided administrators may actually have believed the professor's intent in donning the costume simply didn't matter.
But we should also note that the professor in question was one of seven law school professors who had complained to university officials about the managerial performance of the law school dean [Michael Moffitt]. Isn't it often the case that the settling of personal scores underlie ideological purification campaigns?
Whatever the reason for administrators' responses, let's not forget what's at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom.
This is a sad day for the freedom of speech and expression at the University of Oregon.
Update: Josh Blackman (South Texas), Only One Professor at OregonLaw Willing to Defend the First Amendment:
In her only statement, Shurtz said the punishment amounted to “supremely public retaliation.” Now, for the first time, we see a public defense from one of her colleagues, Ofer Raban, who teaches Constitutional Law at UO. ... In the Oregonian, Raban writes that the administration is concealing its own role in exacerbating this conflict, and may be acting in retaliation for Shurtz’s complaints about the dean.
First, Raban points out the obvious omission from the report–there was no malice or bad intent. It was a well-intentioned, albeit misguided effort, to raise questions about racial equality. ...
Second, Raban points out that the report doesn’t even mention the Oregon Constitution’s free speech provision, which provides more protections than the First Amendment to the U.S. Constitution. ...
Third, Raban gets to the crux of the matter: the administration played a critical role in fanning the flames on campus. ...
Fourth, Raban alludes to the “retaliation” Shurtz alluded to in her statement ...
This editorial takes supreme courage. This is why tenure protections exist — not to allow professors to shirk on teaching and writing after 5 years. Kudos to Raban. Shame on his colleagues who stay quiet.
Prior TaxProf Blog coverage:
- 23 Oregon Law Profs Call On Colleague To Resign For Wearing Blackface At Halloween Party (Nov. 3, 2016)
- Oregon Tax Prof Nancy Shurtz Says She Wore Blackface To Halloween Party To Teach Lesson As Author Of Black Man In A White Coat (Nov. 3, 2016)
- Volokh: Oregon Law Profs' Attempt To End Colleague's Career Over Halloween Blackface Costume Marks 'Dangerous Place In American University Life' (Nov. 4, 2016)
- Oregon Tax Prof Nancy Shurtz Issues Apology For Wearing Blackface To Halloween Party; Dueling Online Petitions Seek Signatories (Nov. 5, 2016)
- Professor Althouse, Dean Amar & President Schill On Oregon Tax Prof Nancy Shurtz's Wearing Blackface To Halloween Party (Nov. 8, 2016)
- Oregonian Editorial, 'Cowering Oregon Law Faculty Need To Learn What Decency, Tolerance And Diversity Really Look Like' (Nov. 12, 2016)
- University Of Oregon Report: Tax Prof Nancy Shurtz Violated Anti-Discrimination Policy By Wearing Blackface To Halloween Party; Any Disciplinary Action Is Confidential (Dec. 22, 2016)
- Blackman: University of Oregon Trampled The First Amendment To Punish Law Prof For Wearing Blackface To Halloween Party In Her Home (Dec. 22, 2016)
- Tax Prof Nancy Shurtz Blasts University Of Oregon For Improperly Releasing Error Filled Report As 'Public Retaliation And Shaming' (Dec. 24, 2016)