Blackman: University of Oregon Trampled The First Amendment To Punish Law Prof For Wearing Blackface To Halloween Party In Her Home

Following up on this morning's post, University Of Oregon Report: Tax Prof Nancy Shurtz Violated Anti-Discrimination Policy By Wearing Blackface To Halloween Party; Any Disciplinary Action Is Confidential:  Josh Blackman (South Texas), The Freedom of Speech at the University of Oregon:

The University of Oregon’s position is similar to the argument that the University of Oklahoma fraternity brothers, who sang racist songs on a bus, could be expelled because it created a “hostile educational environment.” If you haven’t heard this phrase before, get used to it — it is a nebulous standard which will used to punish all manner of constitutionally-protected speech. But this position is a smokescreen. Eugene Volokh explains in this post why there is no “hostile education environment” exception to the First Amendment — especially for speech at private functions. ...

This is a very, very dangerous standard. An off-campus event that a small number of students attended now gives rise to on-campus discipline because students (who did not even witness the event) feel compelled to “avoid the resulting negative environment.” If this is the standard, then anything and everything can create a “hostile educational environment.” Consider several examples I raise in my my forthcoming piece in the Georgetown Journal of Leg HTML al Ethics on Model Rule 8.4(g). What if a Professor made any of these remarks at a bar association function that was also attended by students?

• Race — A speaker discusses “mismatch theory,” and contends that race-based affirmative action should not be permitted because it hurts minority students by placing them in education settings where they have a lower chance of success.
• Gender — A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements.
• Religion — A speaker states that it violates the free exercise rights of for-profit corporations to require them to pay for female employee’s birth control or abortions.
• National Origin — A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous.
• Ethnicity — A speaker states that Korematsu was correctly decided, and that during times of war, the President should be able to detain individuals based on their ethnicity.
• Disability — A speaker explains that people who are mentally handicapped should be eligible for the death penalty.
• Age — A speaker argues that minors convicted of murder can constitutionally be sentenced to life without parole.
• Sexual Orientation — A speaker contends that Obergefell v. Hodges was incorrectly decided, and the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.
• Gender Identity — A speaker states that Title IX cannot be read to prohibit discrimination on the basis of gender identity, and that students should be assigned to bathrooms based on their biological sex.
• Marital Status — A speaker says that it violates the First Amendment to require bakers to design and create a cake for a same-sex wedding or anniversary party.
• Socioeconomic Status — A speaker posits that low-income individuals who receive public assistance should be subject to mandatory drug testing.

Would any of these comments made by a professor at an off-campus party attended by students, now result in disciplinary actions? Do they not give rise to “racial hostility,” or minority students “feeling further disenfranchised,” or students changing habits “to avoid the resulting negative environment,” and a “sense of anxiety and mistrust towards professors and faculty.” These are all legitimate feelings, but none give rise to the level of harm necessary for a state institution to punish a professor for speech at a private party. ...

An outside event generated classroom discussions among students and professor on important topics. This is a bad thing?! Had she simply worn the lab coat, without black face, no one would have even noticed. But the offensiveness of her speech served a First Amendment value. This is a positive attribute of free speech, and not conduct that warrants discipline.

I’ll note in closing that this isn’t strictly a left-right issue. Brian Leiter noted at his blog that the letter from Shurtz’s colleagues “reflects poorly on them, and suggests they have no regard for  contractual and constitutional rights to academic freedom, including the right to engage in racially insensitive extramural speech.” Leiter added, “Absent a finding that the professor treats students or colleagues in racially discriminatory ways, there is no reason for the faculty member to resign (apologizing might be a good idea though!).” Indeed, the report made no findings of how Shurtz actually treated students in class — it was all based on how students feel. Eugene Volokh observed that “[w]e have reached a bad and dangerous place in American life, and in American university life in particular.” I agree with both.

Finally, lest you think these sorts of examples are limited to the bastions of academia, ABA Model Rule 8.4(g) specifically prohibits “harassment” at “social events” that are “related to the practice of law.” Under the University of Oregon’s reasoning, a private Halloween party that is also attended by other faculty and students would be a “social event” connected to “legal education.” (As an aside, Eugene is a tiny town, and it is not surprising that members of the faculty socialize with other members of the faculty — there aren’t many other outlets!). By the same token, lawyers attending a Halloween party that is also frequented by fellow attorneys would also be at a “social event” connected to the practice of law. If you think this sort of punishment is limited to legal academia, wait till states start adopting Model Rule 8.4(g).

Defenders of the First Amendment must stand vigilant. Incidents like Oklahoma (where the students did not challenge their expulsion) and Oregon (where Shurtz — who is near retirement — may not litigate) establish dangerous precedents that will be cited going forward.

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)