The University of Oregon, a public institution, does not see itself as meaningfully bound by the First Amendment to the United States Constitution, nor by any civic obligation to offer a minimally rational or persuasive explanation for why it is not bound. That cavalier attitude specially applies to the School of Law, an academy nominally devoted to teaching about the rule of law.
This is disappointing, if not particularly surprising.
Our story begins on Halloween, with blackface. College of Law Professor Nancy Shurtz wore a blackface as part of a costume at a party at her home to which students were invited. She wore it with a doctor's coat. She intended it as a reference to Damon Tweedy's book Black Man in a White Coat: A Doctor's Reflections on Race and Medicine, in which Dr. Tweedy discusses his experience becoming a doctor. Professor Shurtz intended to comment on discrimination and race in America, and even carried the book as part of her costume for part of the evening.
Many have argued that Professor Schurtz was mistaken about whether blackface — even blackface in the service of a condemnation of racism — is ever socially acceptable. That's a philosophical argument. Factually, Professor Schurtz was absolutely mistaken about the sort of community of which she was a member, and whether her academic interlocutors cared about her intent, her good faith, or the value of her right to express herself in her own home. She was unspeakably naive.
As Eugene Volokh describes, the University of Oregon suspended Professor Shurtz, disciplining her for "harassment." In its report, the University gestured at the correct legal standard for actionable harassment:
Discriminatory Harassment is defined by University policy as conduct that either in form or operation, unreasonably discriminates among individuals on the basis of race or color; which is sufficiently severe or pervasive that it interferes with work or participation in any University program or activity; which creates an intimidating, hostile, or degrading working or university environment for the individual who is the subject of such conduct; and where the conduct would have such an effect on a reasonable person who is similarly situated.
The University is right, at least, that harassment must be severe and pervasive, and that a reasonable person must find it severe or pervasive, to be actionable. But the wheels fell off the wagon when the University applied this standard to the facts.
Almost every student interviewed reported that they knew the costume was “not okay.”
The University mistook academic social consensus — at least among those who felt safe in answering — for severity, pervasiveness, and reason. As Eugene Volokh points out, the University's explanation suggests that the purely subjective reaction of students and faculty hostile to an idea — including deliberate acts by those listeners — can transform speech into harassment. Quoth the report:
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.
Under the University's logic, students and faculty can decide whether expression is harassment subject to discipline by how they choose to react to it. That's a classic heckler's veto. The University's application of the legal norms governing the free speech rights of public employees is equally deferential to subjective hostility to viewpoints.
This approach to the tension between free expression and harassment law is gravely concerning. But it gets worse.
University of Oregon President and Professor of Law Michael H. Schill has written an indignant public statement defending the University from widespread criticism. The statement promotes confusion and ignorance of free speech legal norms in a way unbecoming to a law professor.
But here is the problem—figuring out when and whether there are legitimate limits on freedom of expression actually is complicated.
This is a classic misdirection. Is application of free speech precedent "complicated?" Arguably. But it's not complicated like judging a sonnet or deciding the meaning of life. It's complicated like, say, removing an appendix. You don't remove an appendix by committee of people who have strong feelings about appendices. You remove it by applying medical authority and training and established practices. This is not 'Nam, there are rules. President Schill is invoking a variation on Trope Four, the "unclear line between" trope, pretending that a legal determination is opaque when it's actually based on established precedent.
In general, it is not acceptable for someone to use her rights to deprive another of her rights. I should not be able to use my speech to deny others of their right to be free from racial or sexual harassment. I can hold—and share—controversial views. But that does not give me the right to harass specific individuals or to speak in any way I wish to, in any place, or any point in time.
Now President Schill is begging the question — assuming for his analysis that wearing a costume in your own home at your own party to express a philosophical opposition to racism is "depriving another of her rights" or harassing someone.
But, when exactly does offending someone turn into proscribed harassment? Only a small number of legal commentators would say that faculty members should be immune from all harassment charges on academic freedom grounds.
Here we see Trope Three, "not all speech is protected," used to distract listeners from the application of established legal precedent to this particular situation.
But even I believe that there are cases when speech or conduct is of relatively minimal value compared to the great harm that it may do to our students—particularly to students who already struggle with isolation and lack of representation. For example, imagine a required class in which a professor repeatedly uses the “N” word for no apparent reason except to elicit a reaction. Could African American students forced to sit through this class have a claim of harassment? I think so. Similarly, imagine a class in which a professor makes repeated, sexually explicit remarks to a student or students for no educational purpose. Free speech principles should not, in my view, prevent the university from taking appropriate actions to make sure these actions stop and do not recur in the future.
This argument — which I call "what if there were a wizard with a nuke" — is just a reductio ad absurdum variation on the "not all speech is protected" trope. Yes, we can imagine speech that would satisfy the legal standard for harassment.
To be sure, the case of Professor Shurtz is not quite as clear-cut. The events took place in her home, not in the classroom. Her stated intention ex post was not to offend, but to draw attention to systemic racism. Still, some of her students felt that they were in a similar situation to students in a classroom being subjected to harassing speech, as they felt pressure to attend and to remain at the event. They felt that they could not leave without jeopardizing their standing in the class, and they also felt that the offensive nature of the blackface was the equivalent of hearing the “N” word. In these circumstances, should the university have ignored the event or should it have taken action proportionate to the offense? What lesson would we be teaching our students if we let the incident end without even an official letter of reprimand? These were the very difficult questions that Provost Coltrane had to grapple with, and I am supportive of the process he used and the fairness he displayed in making his decision.
The problem is the complete abandonment of an objective standard and the uncritical embrace of a subjective standard that yields without question to the heckler's-veto-prone assertion of offense. Under this standard — the one that President Schill defends — whether something is harassment and can be punished, and whether a professor's right to speech is outweighed by some notion of public good, depends entirely on how listeners choose to react. Not all students or faculty are intolerant, censorious martinets. But the loudest ones are, and the University of Oregon has decided to defer to them. The University has decided that the people devoted to the idea that ideas and speech they don't like are harassment should determine which speech should be punished, based on the fervor of their reaction.
Call this what you like, but don't call it law. Don't call it a university.
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