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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, January 10, 2017

Chemerinsky, Schill Debate First Amendment Implications Of University Of Oregon's Punishment Of Law Prof For Wearing Blackface To Halloween Party

Shurtz

Erwin Chemerinsky (Dean, UC-Irvine), Worries About Offensiveness Threaten Free Speech on Campuses:

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. ...

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.

Michael Schill (President & Law Professor, Oregon; former Dean, Chicago), Open Mike: Balancing principles:

Over the past couple of months, the University of Oregon’s handling of events associated with Professor Nancy Shurtz’s decision to wear a controversial Halloween costume has garnered significant media attention, both locally and nationally. A number of editorials, letters to the editor, and blog posts have engaged in discussions on the topic. Some of the coverage has been, in my opinion, thoughtful but some has, perhaps not surprisingly, sensationalized and caricatured what is a very serious incident that deeply affected our students and, by extension, our entire university community. A number of colleagues have asked me for my own views on the matter. I hesitate to burden you with this personal reflection, but because this incident has polarized our community I have decided that it would be useful for me to share some of my own thoughts about the matter. ...

The provost accepted the findings of the investigation and, pursuant to university policy, took appropriate actions to make sure that Professor Shurtz understood the gravity of the incident and would not behave in a similar fashion in the future. I am not able to divulge the nature of these actions because university policy mandates confidentiality.

As I consider the case of Professor Shurtz, I have to admit I am torn. I believe that freedom of speech is the core value of any university. When faculty members pursue their avocation—teaching students and conducting research—they must be able to say or write what they think without fear of retribution, even if their views are controversial, and even if their research and their views risk causing offense to others. Otherwise, advances in learning will be stunted. This freedom of speech includes the freedom to share political views, academic theories, good ideas, and even bad ones, too. It includes speech that offends others. Without academic freedom we could scarcely call the UO a university.

Some commentators have taken to the barricades, and suggested that any finding or action taken with respect to Professor Shurtz will ultimately open the door to firing professors for expressing their political views. Really? In law, we call this the “slippery slope” argument or “the parade of horribles.” While I have tossed and turned for nights over the fact that the university found that a professor’s expressive conduct constituted harassment, I think the reaction of those commentators is overly dramatic and not supported by anything that took place in this case. Go online and you will find that Professor Shurtz remains a member of the law school faculty. Name a single faculty member who has been punished by the provost for his or her political views. This has not happened and you have my vow it won’t happen as long as I occupy my office in Johnson Hall.

The blackface incident has been a painful one for everyone in our UO community. It came at a time of heightened emotions with respect to the treatment of African Americans on our campus and on campuses throughout the nation. It also came at a time of turmoil and recrimination in our national politics. In my opinion, each of us should be uncomfortable with the harassment that our students experienced at the home of a senior faculty member. Each of us should also be uncomfortable with the fact that the provost felt it necessary to take remedial actions with respect to a faculty member in connection with her expressive conduct. Maybe I am just being a Pollyanna, but ultimately I hope that this discomfort will serve a good purpose. I hope that we come out of this experience with a greater understanding both of the value of free speech and the ways in which our speech can harm each other.

Update:  Josh Blackman, University of Oregon Quacks out of Both Sides of its Mouth:

Michael H. Schill, the University President, who previously served as a law professor, released an unbearably equivocal statement that tries to have it both ways. ...

At AALS, a number of professors–many I had never met-came up to me and thanked me for writing about this issue. They were all glad I spoke out about these issues, because they were afraid of doing so themselves. I appreciate their praise, but I am saddened that academics, shielded by tenure (something I lack!), were unwilling to defend academic freedom. I’ll keep writing. I hope others keep reading.

Prior TaxProf Blog coverage:

http://taxprof.typepad.com/taxprof_blog/2017/01/chemerinsky-schill-debate-the-first-amendment-implications-of-university-of-oregons-punishment-of-la.html

Legal Education | Permalink

Comments

http://www.telegraph.co.uk/news/2017/01/08/universities-warned-snowflake-student-demands/

Universities warned over 'snowflake' student demands

Camilla Turner, Education Editor

8 January 2017 • 9:44am

Universities will be forced to pander to the demands of "snowflake" students if controversial changes to the ranking system are approved, education leaders have warned.

The Government faces a cross-party revolt in the Lords this week over proposed reforms to higher education, which include placing student satisfaction at the heart of a new ranking system.

It is feared that this will lead to a "fantastically dangerous" culture where authorities will give in to student demands, however unreasonable they may be.

Baroness Wolf, a professor at King’s College London (KCL), warned: “Universities are increasingly nervous about doing anything that will create overt dissatisfaction among students because they are being told that student satisfaction is key.

“It has had a real effect on the willingness of universities to stand up to student demands which in the past have been removing statues, safe spaces and no-platforming. This whole movement is a direct threat to academic standards and the ability of universities to stand up for freedom of speech.”

She added: “The student satisfaction measure is fantastically dangerous. The way to make students happy is not asking them to do any work and giving them a high grade.
"This whole movement is a direct threat to academic standards and the ability of universities to stand up for freedom of speech"Baroness Wolf, a professor at King’s College London

“This will reduce standards and undermine quality. I just think this is totally mad, and destructive of everything universities stand for.”

Professor Julia Black, interim director at London School of Economics, Baroness Wolf, Baroness Deech, a former senior proctor at Oxford University, and Gill Evans, an emeritus professor at Cambridge University told The Telegraph of their concerns.

Posted by: David | Jan 10, 2017 11:47:49 AM

Where is the AAUP on this situation? Where is the ACLU? Where is the AALS? Where is the ABA Section on Legal Education?

Posted by: Bert Lazerow | Jan 10, 2017 11:50:10 AM

President Schill’s defense of his actions is unpersuasive. I will focus here on three lines in which he appears intentionally to hide the ball.

First, he asserts that no faculty member at Oregon has ever “been punished by the provost for his or her political views.” I do not know whether this is true. I do know that Nancy was punished for the mode of expression of her political views, which is also protected by the First Amendment. And I find it odd that President Schill took pains to insert the qualifying phrase “by the provost” into his claim, leaving open the possibility that faculty members have been punished by someone other than the provost.

Second, he argues that “each of us should be uncomfortable with the harassment that our students experienced at the home of a senior faculty member.” The Oxford online dictionaries define “harass” to mean “subject to aggressive pressure or intimidation” or “make repeated small-scale attacks on (an enemy).” Nancy did neither of these things. In my view, “harassment” requires mens rea. What the University of Oregon has done, with President Schill’s blessing, is to make offending others a strict liability offense.

Finally, he observes that “Each of us should also be uncomfortable with the fact that the provost felt it necessary to take remedial actions with respect to a faculty member in connection with her expressive conduct.” No. What makes Oregon’s critics uncomfortable is rather “the fact that the provost [punished] a faculty member in connection with her expressive conduct.” That the provost “felt it necessary” to do so does not justify anything. The sentence is also written to be intentionally ambiguous; it can almost be read to express discomfort with what the provost did. But President Schill is the provost’s boss. If Oregon behaved improperly, the President is responsible. I would have felt more comfortable if, somewhere in the defense, the President had said “I did this” and “what I did was right.” Blaming the provost (or Nancy for “forcing” the provost to punish her) is a cop-out.

Posted by: Theodore Seto | Jan 10, 2017 11:11:47 PM

Professor Seto nails it on all counts.

Posted by: Mike Petrik | Jan 11, 2017 7:47:52 AM

I must say that I am impressed and encouraged by the intellectual honesty being demonstrated by a number of law school administrators, and faculty, from whom I honestly wouldn't have expected it, on an issue of this nature...

Posted by: Anon | Jan 11, 2017 10:36:08 AM