Artist To Appeal Federal District Court's Decision Allowing Vermont Law School To Cover Underground Railroad Murals

Following up on my previous post, Federal Judge Rules That Vermont Law School Can Cover Underground Railroad Murals Despite Artist's Objection: 

Marc James Léger, Sam Kerson Lawyers Will Appeal Court Decision:

The World Socialist Web Site today published an article I wrote for them to help raise public awareness of a court decision that would allow the Vermont Law School to effectively destroy two murals by Sam Kerson that commemorate the Underground Railroad. Even if at this stage the immediate decision only allows the school to cover the works, it sets a dangerous precedent under VARA that allows a group of race representatives and their supporters to destroy art that represents the history of slavery and abolition because it was not made by a black artist.

World Socialist Web Site:  Artist Sam Kerson Will Continue to Fight Vermont Law School Effort to Cover Up Murals Commemorating Abolition of Slavery, by Marc James Léger:

On October 20, a judge with the U.S. District Court for the State of Vermont ruled that the Vermont Law School can go forward with its plan to conceal two murals painted by the artist Sam Kerson in 1993-94. Titled The Underground Railroad, Vermont and the Fugitive Slave, the work is comprised of two 8 x 24’ panels. The first depicts the enslavement of Africans, a slave market, forced toil and a raucous scene of slave rebellion. The second mural depicts the abolitionists Frederick Douglass, John Brown, Harriet Beecher Stowe, Harriet Tubman, as well as South Royalton residents sheltering refugees as they make their way to the Canadian border. Some people, possibly Quakers, help escaped slaves mount a white horse, a symbol of peace, in front of the Vermont legislature. The murals commemorate the efforts of black and white Americans in the United States and Vermont to achieve freedom and justice.

Located in the Chase Community Center of the Vermont Law School in South Royalton, the works have been the target of student complaints over the years. Criticisms that have taken place in the context of the George Floyd protests, however, and after national debates over the fate of the Victor Arnautoff murals in the George Washington High School in San Francisco, have caused the school administration to seek to hide the murals permanently. Although black as well as white students have objected to the removal of the murals, the school has joined the wave of woke iconoclasm that has overtaken the country, from the Chicago Monuments Project, where statues of George Washington and Abraham Lincoln are being considered for removal, to the recent decision to remove a statue of Thomas Jefferson from New York City Hall.

In an effort to save his murals from destruction, Kerson challenged the school’s decision with a lawsuit based of the Visual Artists Rights Act (VARA). The 1990 law allows artists to protect their work from any “intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation.” The recent decision by judge Geoffrey W. Crawford finds that the school’s plan to permanently cover over the murals does not infringe on the artist’s moral rights. Since VARA does not prohibit the permanent concealment of a work of art, the judge has ruled that the school’s proposal can be compared to a museum placing a work of art in storage. Leading to this decision, however, the artist provided evidence by art conservationists that covering them will likely cause damage over time, a process of degradation that is not covered by VARA. ...

By preventing Kerson’s murals from being seen, the VLS is sending the message that there is something objectionable about them. By also accepting that damage could be caused to them, the school is also indicating that they could care less about their preservation. For these reasons the artist and his lawyers have decided to take an appeal to a second circuit court. Kerson’s lawyers, Steven Hyman and Richard Rubin, have stated: “VARA was intended to preserve our cultural history and protect the honor and reputation of the artists who contribute so much to that history. The Law School’s unyielding intent to entomb these mural — acknowledged to be of recognized stature — behind a wall so that they can never be viewed again is clearly both an affront to Mr. Kerson’s honor and reputation, and to the values intended to be preserved by the Visual Arts Rights Act.” The phrase “recognized stature” is significant here because it indicates that the school and its legal representatives acknowledge that the value and merit of the works is not disputed.

We are faced with a contradiction: a valued work of art is to be hidden from view. And how is this contradiction explained? One needs a more inclusive understanding of what is happening today to appreciate that the myths of race essentialism are covering over class contradictions that are neither acknowledge or even perceived. What is it that some students have objected to? According to court documents, the work has been denounced for “cartoonish, almost animalistic” depictions of enslaved African people. These depictions were said by the Associate Dean for student affairs and diversity, Shirley Jefferson, to have created an intolerable atmosphere. However, until the George Floyd protests, there were not enough complaints to present a resolution to remove the murals.

In this case, as in so many other instances of racialist indignation, the feelings of some students, inflamed by current trends to cancel anything that a few deem suspect, is corroborated by administrators who prefer to expediently manage a situation than assess the merits and consequences of decisions made in the name of minority constituencies. It should be obvious to anyone who has given the briefest glance at the murals that the work is fanciful and colorful, while it simultaneously elicits strong feelings about the suffering of tens of millions of slaves. What is also apparent is that all of the figures are somewhat cartoonish.

Known for his engagement with progressive causes, with murals painted for the Sandinistas in Nicaragua and graphic works on themes like nuclear catastrophe, the death penalty and the war on Palestinians, Kerson is an original and assertive stylist who has worked in various art forms, including painting, sculpture, theatre and video. But no research or thoughtful consideration for the opinions of others are to be expected from university students, it would seem, who offer only an incriminating response.

Wherever representations of race are involved, self-appointed representatives of racial groups take it upon themselves to intervene in public space in the interest of individual, group and community “empowerment.” Since many in academia and the activist milieu have adopted postmodernism’s replacement of universalism with questions of difference, political commitments have become relativized according to the prerogatives of identity. In the context of woke cancelations, progressives are expected to think of themselves as “allies” rather than citizens, let alone comrades. There is less concern shown for whether or not a work of art or someone’s career is being destroyed than there is for the pretense that such activism is challenging the norms of privilege.

The trouble with today’s anti-racists is that they substitute discussions of social inequality with accusations of institutional racism and demands for symbolic reparation. ... The notion that tearing down works by progressive artists will bring about social justice would be laughable if only the demand for whites and members of other so-called “privileged” groups to step aside and center black lives did not come with bullying tactics and McCarthy-like managerial punishments. In Vermont, high school principal Tiffany Riley was fired for stating on her personal Facebook that she did not think people should have to choose between the black race and the human race. When consulted on the Kerson case, Senator Bernie Sanders deferred to the decisions of the VLS administration and to the phenomenon of Black Lives Matter.

If the answer is “because black lives matter,” what then is the question? With some luck, an incident like this can lead to reflection and deliberation, but with so many “national conversations” being started on so many fronts, it is necessary to abstract from particulars and make some generalizations about what is happening. And for this to be done with any degree of justice, postmodern nihilism, race reductionism and political relativism will not do. The working class must stand firm and support artists like Sam Kerson and composer Bright Sheng in their struggles against this destructive trend of social opportunism.

Prior TaxProf Blog coverage: 

• Vermont Law School To Paint Over Mural Celebrating State's Role In The Underground Railroad And Abolitionist Movement Because Depiction Of Blacks 'Made Some People Uncomfortable' (July 11, 2020)
• Vermont Law School Gives Artist 90 Days To Remove 'Offensive' Mural (July 27, 2020)
• Artist Defends Mural Honoring Underground Railroad And Abolitionist Movement That Vermont Law School Plans To Paint Over Because Some Black Students Say It Is Racist (July 31, 2020)
• Artist Sues To Prevent Vermont Law School From Painting Over Underground Railroad Murals That Black Students Call Racist (Dec. 4, 2020)
• Vermont Law School Moves To Dismiss Lawsuit By Artist To Protect Underground Railroad Murals That Black Students Call Racist (Feb. 7, 2021)
• The Writing Is On The Wall For Vermont Law School's Underground Railroad Murals After Federal Judge’s Ruling (Mar. 13, 2021)
• Debate Continues Over Vermont Law School's Underground Railroad Murals That Black Students Call Racist (Sept. 6, 2021)
• Federal District Court Holds Hearing On Controversial Mural Today At Vermont Law School (Oct. 8, 2021)
• Federal Judge Rules That Vermont Law School Can Cover Underground Railroad Murals Despite Artist's Objection (Oct. 21, 2021)