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Thursday, December 22, 2016

University Of Oregon Report: Tax Prof Nancy Shurtz Violated Anti-Discrimination Policy By Wearing Blackface To Halloween Party; Any Disciplinary Action Is Confidential


University of Oregon, Provost Issues Statement and Report Regarding Investigation:

Dear members of the University of Oregon campus community,

A decision by Professor Nancy Shurtz to wear a Halloween costume that included black makeup on her face and hands at a party she hosted for UO law students, former students, and faculty members forced our campus to face some very difficult truths about racism, ignorance, and the state of inclusivity on our campus. Her costume mimicked the historic stereotype of blackface, and caused offense to many who witnessed it.

Today, I write with news of the disposition of the investigation led by the UO Office of Affirmative Action and Equal Opportunity as a result of complaints made to the law school following the event at her home on October 31. The investigation into whether Professor Shurtz violated any law or university policy was conducted by the Barran Liebman LLP law firm in Portland under the direction and guidance of the AAEO office and UO general counsel Kevin Reed.

Although the findings of such investigations are not usually released, in this case the public nature of the act, the resulting public outcry, its impact on campus climate, and the fact that Professor Shurtz already released a letter that identifies herself and her intentions, the university has determined that it best serves the public interest to release a redacted version of the report. A copy has been posted online.

Though the report recognizes that Professor Shurtz did not demonstrate ill intent in her choice of costume, it concludes that her actions had a negative impact on the university’s learning environment and constituted harassment under the UO’s antidiscrimination policies. Furthermore, the report finds that pursuant to applicable legal precedent, the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school's academic freedom policies.

In all cases where the university is advised that an employee violated university policy, the matter is reviewed under the appropriate disciplinary process. I have read the report, and accept its conclusion. Any resulting disciplinary action remains confidential under university policy.

My hope is that both the law school community and the broader campus community can shift focus from Professor Shurtz to the much-needed process of healing and growth. We all need to work together to make this university one that is inclusive and welcoming to all. It is only through that process that we will ensure that similar incidents do not take place in the future.

University of Oregon Investigative Report (Nov. 30, 2016):


Shurtz hosted a Halloween party at her home on October 31, 2016. She invited all of the students from both her Tax Policy and Tax Planning classes. The invitation was made orally during class, as well as by sending emails through the class listservs, using the students’ University email addresses. The invitation was open to guests, in that students were welcome to bring family members, dates, or plus-ones. Several faculty members and alumni were also invited. Shurtz indicated in advance that people could choose to wear costumes if they wished, and that she would be “going as a popular book title,” with no further description of her anticipated costume.

Shurtz modeled her costume after a book titled Black Man in a White Coat, by Damon Tweedy, MD. Her costume incorporated a white doctor’s lab coat, a stethoscope, black makeup on her face and hands, and a black curly wig resembling an afro. ...

The interviews unanimously revealed that nobody told Shurtz during the event that her costume was inappropriate, that it was offensive, or that she should consider removing the black makeup. In addition, all those who were interviewed conveyed that Shurtz appeared to have worn the costume in earnest, and that she did not seem to understand the ramifications of her costume.

Following the event and that same evening, one student sent Shurtz an email conveying disappointment over the costume, and that the costume choice may have caused offense. The following morning, November 1, 2016, Shurtz responded to this student, and copied both of her class listservs, conveying why she had chosen the costume. Another student spoke with Shurtz in person to impress upon her the fact that her costume was likely to result in repercussions. Shurtz also reached out to two students of color who were in attendance at the event to personally apologize for her costume choice. ...

While it is clear that different guests received varying levels of explanation about the costume and its purpose during the event, most either received or indirectly heard at least some explanation about the costume, and all of them understood that it was related to the book which was on the coffee table. A smaller number of witnesses were told or perceived during the event that Shurtz was intending to start a conversation or make a reference to discrimination in higher education and society at large. ...

The email invitations sent by Shurtz to her two class listservs were generally brief. We asked the student witnesses whether they perceived or personally felt any pressure to attend the event. ...

Two students explained that there was no classroom requirement to attend and that they did not feel directly pressured, but noted that they felt indirectly obligated to make an appearance because of a general sense of the student-teacher relationship, including the knowledge that Shurtz had papers of theirs on her desk that she would soon be grading. One of the two students explained that attending the event felt like participation in class, stating “I wouldn’t have gone if it didn’t feel like participation in class. You want her to know you and recognize you. It helps. Participation is huge in a small class. If she’s invited you to her house, you need to make the face time.” This student would not have attended the event if such attendance did not feel to the student like class participation that could influence his or her grade. The other of the two students went on to explain that this sense of indirect obligation to attend extended to a similar feeling to remain at the event, despite feeling extremely uncomfortable about being around Shurtz in this costume. ...

Half of the students personally felt, or understood that other students felt, that attendance at Shurtz’s party, and remaining for a longer duration of time even despite feeling uncomfortable, was important in relation to the teacher-student relationship. Half of the students felt at ease to attend or not attend at their own discretion. ...

In evaluating the event in light of the University’s policies against discrimination, it is important to outline the outcomes and impacts following the event, upon both the attendees as well as the student body. As stated previously, different guests had differing personal perspectives, so the range of responses varied accordingly. One point that was clear, at least before the event, was that most of the attendees knew Shurtz (setting aside the family members and plus-ones), had an appreciation for or understanding of her personality and her general intentions, and held her in esteem. ...

Shurtz explained her costume choice in some detail. She said that she had read the book, Black Man in a White Coat, which she had really enjoyed. When she read the book she felt like she related to the author, found Damon Tweedy to be an amazing man, and enjoyed his writing. Shurtz had also recently attended her daughter’s white coat ceremony as part of her daughter’s first year at medical school. Amongst her daughter’s incoming class, Shurtz had noticed a shortage of students of color, and specifically an almost complete absence of black men. She feels strongly that black men are underrepresented in higher education, and she felt that on Halloween she could be a black man in a white coat in order to represent this topic. She clarified that she did not dress as Damon Tweedy or try to look like him specifically, but that she dressed as the book, or as a black man in a white coat. She stated that she had been thinking about this book and this costume for some time. 

When asked if she had thought her costume was going to be controversial, Shurtz replied in the negative. She said she had thought to herself that she could represent this black man and she could talk about a black man being a professional, which are issues that are important to her. She said her intention had been to honor Damon Tweedy. ...

She stated numerous times that nobody said anything to her about her costume, that she was not aware or had not heard of any negative connotation associated with putting black makeup on one’s face, that she had absolutely no intention to offend or mock anyone, and that she wished emphatically that someone had said something to her, particularly given that she was in her home and would have easily been able to wash the makeup off or remove her costume. She stated that she did not know the term “blackface.”

Shurtz further explained that minority issues are very important to her and that she has openly criticized the law school for what she considers to be a long history of discrimination against minorities.

Shurtz explained that following the event, she received an email from one student and had a conversation with another student, both of whom had attended the event, and they conveyed to her that her costume choice was inappropriate and might have caused offense. She decided to respond to the student’s email by copying both of her classes because she felt that since she had invited all of them, she needed to apologize to all of them. She then individually responded to the students of color who had been in attendance.

Following these communications, Shurtz explained that she met with Dean Moffitt, Erica Daley, and Adell Admos, and tried to explain what had happened. She stated that she was very upset because nobody had told her about the costume, that she had been unaware, and that she felt that people were jumping to racism and an action that had wrongful intent. Shurtz felt that during this meeting, the administrators did not understand her purpose and they did not think her daughter’s medical school experience was important to the issue with her costume. Shurtz also spoke with a few faculty members before she left on administrative leave. She felt that the faculty members who were irate probably did not know about all the great work she had done and her commitment to social justice issues.


We find that Nancy Shurtz’s costume, including what constitutes “blackface” through use of black makeup, constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment. ...

Shurtz’s conduct, in donning a costume at a Halloween party which hosted both students and faculty, operated to distinguish against a group of people on the basis of race or color. The black makeup she incorporated, whether specifically termed as “blackface” or not, has a very negative racial history and connotations. The use of a costume component with such negative connotations operated to unreasonably differentiate between students of color and other students. ...

The law school environment has become hostile, with discussions and strong conflicts of opinion taking place within the classrooms and on the law school social media pages. The reactions to the event and the students’ conflicts have required other teachers to take time from lessons to address the Halloween incident. The open discussions in class have also resulted in racial hostility between the students. The lack of understanding by some students, coupled with an existing lack of diversity in the law school student body, has led to minority students feeling further disenfranchised from their classmates and the school. Some students have been missing class, avoiding the law school, and changing their study habits in an attempt to avoid the resulting negative environment. Based on both the reaction and lack of reaction from other faculty and professors, students have also felt a sense of anxiety and mistrust towards professors and faculty beyond just Shurtz, with some students considering and seeking out transfers to other schools. A full list of the range and severity of impacts has been referenced above. ...

We find that this environment was and is intimidating and hostile and has impacted a wide range of students from different backgrounds. It is also apparent, given the unanimous response from the witnesses, that a reasonable person who is similarly situated would have experienced such an effect. Almost every student interviewed reported that they knew the costume was “not okay.”

Shurtz’s costume was directed at all of the guests at her party and did not result in a different application of privileges to some students over others. However, it is likely and even probable that her costume had a greater negative impact on students of color, because of the historical connotations of, and uses for, “blackface.”

Our evaluation, consistent with our finding of discriminatory harassment, is that the effects of Shurtz’s costume constitute disruption to the University significant enough to outweigh Shurtz’s interests in academic freedom and freedom of speech in the type of speech at issue. In addition, the resulting hostile learning environment and impact upon the academic process renders this particular speech to be speech that the University has a strong interest in preventing.

It is important to note that the witness interviews described two additional factors which have contributed to the resulting outcome. One factor is the preexisting lack of diversity in the law school, which could be either the cause or result of other “fissures” that existed under the surface. The second factor consists of the reactions of the various relevant groups: the students, faculty, and administration. Some of the witnesses reported that the students’ reactions to the event were racially insensitive or divisive, that the communications sent out by administration may have served to anger or confuse some students about the context of the event, and some of the faculty’s responses or lack of responses to the resulting discussions in the classroom environment also contributed to the hostility and divisiveness in the law school.

It is unlikely that any investigation would be able to meaningfully evaluate how much of the resulting impact was caused directly by Shurtz and how much of the impact is connected to these other factors. We acknowledge the presence of these other factors and the conclusion we reach is that Shurtz’s costume and actions set a course of events in motion, even though she did not intend those outcomes, which have been very negative towards, and impactful to, the school and the learning environment.

Based on the interviews conducted and our review and analysis of the information obtained during this investigation, we conclude:

  1. That Nancy Shurtz’s wearing of the costume at the stated event constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment under those policies.
  2. That the actual disruption and harm to the University resulting from Nancy Shurtz’s wearing of the costume at the stated event are significant enough to outweigh Nancy Shurtz’s interests in academic freedom and free speech.

Register-Guard, UO Investigators Find Professor Who Wore Blackface Costume Violated Anti-Harassment Policies; Any Disciplinary Action Against Nancy Shurtz Will Remain Confidential:

Shurtz has been on administrative leave since the week after the incident. The dean’s office is reviewing her case and will decide, with Shurtz, whether she will return for the law school’s next semester, which begins Jan. 9, spokesman Tobin Klinger said.

The university will not release the results of the disciplinary process, he said, adding that this is all the university has to say on the matter. ...

A petition launched in November to demand that Shurtz resign has collected 1,227 supporters.

A second petition in support of her free speech and academic freedom has gathered 301 signatures.

UO Matters: The Unofficial Safe Space of the University of Oregon:  UO Releases Report on Law Prof’s “Black Makeup”/Blackface Costume, by William Hoffman (Professor of Economics, University of Oregon):

The report spends a great deal of time on the effects of the incident. Its report on the administration’s response is less thorough. It does not address the possibility that the responses of the law school administration might have been in part motivated by a desire to retaliate against Shurtz for her opposition to the reappointment of Dean Moffitt, or the possibility that the responses by the law school administration, some of its faculty, and the central administration may have escalated the situation and increased the level of racial harassment felt by students, or the harm to the law school and UO.

Prior TaxProf Blog coverage:

Legal Education, Tax | Permalink


This captures, better than any other single event, why Trump is going to be our next President.

Posted by: mike livingston | Dec 22, 2016 4:15:52 AM

I would really like to see each of the faculty who immediately signed a letter demanding Prof. Shurtz's resignation be fired. So ridiculous. I hope other schools, like mine, have taken note of their names should any of them ever attempt to lateral.

Posted by: lawprof | Dec 22, 2016 5:50:00 AM

I so enjoy watching preachy leftist profs being reprimanded by even preachier leftist students.

Posted by: Actual Lawyer | Dec 22, 2016 5:53:09 AM

I cannot believe this. Yeah, maybe not a wise choice in these times. But anyone who knows Nancy knows that this depiction of her as a careless discriminator is wrong.

Posted by: Pat Cain | Dec 22, 2016 5:08:27 PM


Posted by: andy | Dec 23, 2016 1:46:41 AM