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:
- 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)
- Volokh: Punishment Of Tax Prof Nancy Shurtz Means The End Of Free Speech At The University of Oregon (Dec. 27, 2016)
- Volokh: University Of Oregon's Punishment Of Tax Prof Nancy Shurtz May Signal The End Of Free Speech For All Professors At All Universities (Jan. 3, 2017)
- Jones: The University of Oregon, Nancy Shurtz, And The Racial Rules That Keep Us Apart (Jan. 5, 2017)
- Op-Ed: Critics Of University Of Oregon's Punishment Of Tax Prof Nancy Shurtz For Wearing Blackface To A Halloween Party In Her Home Need To "Move On' And 'Get Over It' (Jan. 7, 2017)
- Law Prof Objects To Vilification Of Nancy Shurtz, But Concedes 'Her Social Skills May Need Work': Tax Faculty 'Tend To Be A Bit 'Different'' (Jan. 9, 2017)