In his column at the Washington Post, Eugene Volokh reports on an incident at the University of Oregon (UO) that was previously covered only by right-wing websites. What happened is that a UO tenured professor of law, Nancy Schurtz, had a Halloween party at her home, and dressed in blackface and a white doctor’s coat—but not out of racism or mockery. She invited several students to her party, and some of them complained about the blackface costume. It also became a topic at the UO Law School, and, based on the complaints, the University commissioned an investigation, which yielded a 29-page report.

In the report, Schurtz explained why she dressed in blackface. She was surprisingly clueless about the implications of wearing blackface in America, and thought she was making a positive statement. This is from the report:

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 wasn’t called out at the party, but afterwards was rebuked by a student, and apologized:

To the best of Shurtz’s recollection, there were approximately 13 students in attendance, two alumni with three of their corresponding guests/family members, three faculty members, and four other individuals, for an approximate total of 25 guests. At least two of the students in attendance from the law school community were students of color. Of all the attendees, 24 out of 25 were either directly affiliated with the law school, or were a guest of those affiliates. 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.

The University also noted that at this party Schurtz was not acting as a representative of the University. Nevertheless, the report considered her actions “disruptive to the educational environment”, and even the subsequent discussions at the UO Law School, which took up class time, was considered a form of toxicity and disruptive harassment. Some minority students even said they were trying to leave the University:

. . . Actual impacts that we heard from those interviewed included shock, anger, surprise, anxiety, disappointment, and discomfort with remaining at the event. Given the number of students who were present for the event, the publicity surrounding the incident, the severity of the costume choice and the level of offense, and the significant and ongoing impacts upon both the attendees as well as the student body, it is clear that Shurtz’s costume was substantially disruptive to the educational environment. Outcomes and impacts upon the broader student body have been described at length above, but a summary of such impacts includes outright hostility and division between the students, the environment being described by some as “toxic,” class time being spent on discussing the event and the students’ reactions, the open forum, minority students feeling that they have become burdened with educating other students about racial issues and racial sensitivity, students using other offensive racially-based terminology during class times in the context of discussing this event and broader racial issues, feelings of anxiety and mistrust towards other professors beyond just Shurtz, students now avoiding spending time on campus as a result, and some students who are attempting to transfer to a different law school.

And so the University of Oregon found Schurtz guilty of “discriminatory harassment” and suspended her. Here are the report’s conclusions.

VII. CONCLUSION

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.

Respectfully Submitted,
Edwin A. Harnden
Shayda Z. Le
Barran Liebman LLP

Should Schurtz have worn the blackface costume? Surely it was a very unwise decision, as almost anyone over the age of 10 knows the racial connotations of wearing blackface. But remember that it was done out of an antiracist sentiment.

Should Schurtz have been suspended or discipline? I don’t think so, for her actions were those of a private individual in her private home, and not acting in the capacity of a University professor. Perhaps she should have been subject to a conversation with the administration, informing her that this wasn’t a good thing to do for the sake of the students, but dismissing her is a violation of free speech (and yes, wearing blackface, odious as it is, constitutes free speech if it’s not done in the workplace with the effect of creating a hostile climate).

But there are wider implications for free speech at the University, as Volokh points out. Blackface seems like a cut-and-dried case because of its history of association with racism, but there are other potentially “offensive” matters that Volokh brings up:

Let’s take religion. Say a professor posts something on his blog containing the Mohammad cartoons (as I have done myself); or say that he displays them at a debate or panel that he is participating on; and say that he has invited students in the past to read the blog or to attend the panel. Then some Muslim students, both ones who are at the event and those who just hear about it, get upset. His colleagues and the administration decide to discuss the matter in detail, which fans the flames — something that could happen with the cartoons as easily as it can with Shurtz’s makeup. Under the logic of the Oregon report, such a post would equally be punishable “harassment.”

And, of course, this would be even clearer as to deliberate negative commentary on a particular group:

• Sharp criticism of Islam.
• Claims that homosexuality is immoral.
• Claims that there are biological differences in aptitude and temperament, on average, between men and women.
• Rejection of the view that gender identity can be defined by self-perception, as opposed to biology.
• Harsh condemnation of soldiering (that would be harassment based on “service in the uniformed services” or “veteran status”).
• Condemnation of people who have children out of wedlock (that would be harassment based on “marital … status” and “family status”).

The University’s report also said this:  “The University does not take issue with the subject matter of Shurtz’s expression, or her viewpoints, but the freedoms under this policy end where prohibited discrimination and/or discriminatory harassment begin.” Volokh responds: “Actually, to be honest, the university does “take issue with the subject matter of Shurtz’s expression, or her viewpoints,” and concludes that the offensiveness of that subject matter and viewpoints makes it “harassment” and strips it of protection.”

Blackface is odious, but its racist connotations have to be seen as somewhat mitigated in this case, and even if they weren’t, it’s clearly protected by the First Amendment. What’s more worrying is that the U of O has seen fit to punish a professor and suppress her speech when it constitutes “disruption” (seen as discriminatory harassment), although much of that disruption came about in subsequent discussion in the Law School—discussion in which Schurtz did not participate.

The greater danger, which I think is more than speculative, is that other forms of “disruption”, as given in Volokh’s list above, will also be punished and hence banned, and then we’re on the way to a complete elimination of free speech—unless that speech doesn’t offend anyone. But that upends the whole purpose of the First Amendment.