The University of Oregon suspended a tenured professor for wearing blackface at an off-campus Halloween party, and now is considering additional punishment.
The university admits the professor had no ill intent (reports suggest that she wore it in a strange attempt to honor a black physician, by dressing up as the title character in a black doctor’s memoir, “Black Man in a White Coat”). But it claims — falsely — that this off-campus expression of racial insensitivity on a single occasion constituted illegal racial harassment under federal law (Title VI of the Civil Rights Act). In punishing the professor, it has violated the First Amendment.
As law professor Josh Blackman notes, the controversy began after “Nancy Shurtz, a tenured professor at the University of Oregon Law School, wore blackface to a Halloween party” as part of a costume that “also included a white lab coat and stethoscope.” In response, “Shurtz was suspended with pay, pending an investigation. That investigation came to a close on November 30.”
The University of Oregon’s investigation concluded that Shurtz had created a hostile environment through this mere act, even though constitutional experts such as UCLA law professor Eugene Volokh had observed weeks earlier that the professor’s off-campus expression was protected by the First Amendment under court rulings such as Iota Xi v. George Mason Univ. (4th Cir. 1993), which ruled that even a mocking portrayal of blacks by students using blackface was protected by the First Amendment. Moreover, the Fourth Circuit Court of Appeals had ruled in Berger v. Battaglia (1985) that public employees have a First Amendment right to perform publicly in blackface while not on duty.
On December 23, notes Professor Blackman, “the Provost of the University of Oregon released a statement, along with a redacted version of the investigative report,” claiming that “Shurtz can be disciplined consistent with the First Amendment and principles of academic freedom. Here is the Provost’s summary:
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 under 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.
The report’s findings of “harassment” are nonsense. Courts have ruled that far more offensive behavior does not rise to the level of illegal racial harassment, such as occasionally overhearing or witnessing the use of the N-word by co-workers. (See Bolden v. PRC, 43 F.3d 545 (10th Cir. 1994) and Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998)).
The problem, obviously, is that our legal system has not kept pace with The New & Approved List of Special Commandments brought down by the Specially Anointed from the craggy peak of Mt. Diversity (amidst much excessively self-righteous sturm und drang).
#1 on that list: Thou shalt not do or say anything which might offend any individual who is a member of any ‘approved’ racial or ethnic or gender or sexually-preferenced minority. That’s it. [Sometimes it’s hard to predict what might offend…could be a pronoun or a spelling correction…but in this case only the completely tone-deaf could believe Blackface would be OK.]
Prof. Shurtz (undoubtedly complacently secure in her position as a specialist in Women & the Law (“I of all people would not want to offend”) simply violated that commandment. Her punishment was inevitable.
That her behavior was legally permissible…that it was protected by the Constitution and the Bill of Rights…that the Court had already ruled, granting the permissibility of Backface as a form of expression… none of that matters. She had broken the Prime Directive. Outrage ensued.
“Hatred is the most accessible and comprehensive of all the unifying agents. Mass movements can rise and spread without belief in a god, but never without a belief in a devil.”
Prof. Shurtz, clearly, is the Devil.
This sort of thing can happen because there are no consequences to the administrators who puff themselves up and sanctimoniously preach punishment. The process IS the punishment for the targeted faculty, a process for which tenure provides no immunity against the administrative pathogen. If this professor chooses to spend the next 10 years of her life fighting this up and down the federal court system, and is finally victorious, there will be no punishment meted out to this self-righteous bureaucrat for being wrong.
People will moralize all day long under conditions like these.