Free speech is gravely threatened at the University of Oregon.
That’s the inescapable conclusion of a report outlining the university’s rationale for suspending a female law professor who dressed up as a black man during a Halloween party she hosted.
The professor, Nancy Shurtz, committed an act of race-based discriminatory harassment, according to the university’s investigation—even though she had no intention of offending anyone and had never heard of blackface before.
This is one of the most disturbing outcomes pertaining to faculty free speech rights in recent memory: Shurtz joins Laura Kipnis, Teresa Buchanan, and Andrea Quenette among the ranks of female academics who were censored for expressing an unpopular opinion on the subject of race or sex. Shurtz’s situation is most similar to Quenette’s in that she had no intention of making her students uncomfortable.
According to Oregon’s report—which was compiled by a private law firm—Shurtz hosted a private Halloween party at her own home. Students were invited to attend, and several did so. Shurtz’s costume was “black man in a white coat,” a reference to a book by Dr. Damon Tweedy about his experience as a doctor of color. Shurtz later told investigators she intended to pay homage to the book, which she had enjoyed, and start a dialogue about racial diversity:
We determined that she was inspired by this book and by the author, that she greatly admires Damon Tweedy and wanted to honor him, and that she dressed as the book because she finds it reprehensible that there is a shortage of racial diversity, and particularly of black men, in higher education. Shurtz was further inspired to this costume by virtue of the fact that her daughter attends medical school and her incoming class also had very few people of color; her daughter inquired with school administration about the class demographics and this apparently led to the medical school assigning reading assignments from Damon Tweedy’s book. Shurtz’s email to her class list the day after the event explained that she had intended “to teach with this costume as well (or at least tell an interesting story)” and Shurtz’s public apology following the event conveyed that she had intended to provoke a discussion on racism in society, educational institutions and professions.
(Well, we can’t have a university professor provoking a discussion on racism in society. Burn the witch!)
Shurtz’s costume involved the use of black makeup on her face and hands, which constitutes an offensive use of blackface in the eyes of many people. Blackface is always impolite, this thinking goes, because of its racist and discriminatory history—even if the person wearing it is portraying a specific black person, rather than black people generally, and even if the portrayal isn’t intended to be mocking.
I’m not sure whether this logic makes any sense, but even if it does—even if blackface is patently and objectively offensive to a number of people—what right does a public university have to discipline a law professor for dressing provocatively?
Well, according to the report, Shurtz’s costume constitutes discriminatory harassment because:
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. …
Almost every student reported feeling shocked, offended, angered, disappointed, surprised, anxious or uncomfortable being at the event. The discomfort was not limited to the students of color. …
Discriminatory Harassment under the University’s policies is directly comparable to racial or sexual harassment under Title VI or Title VII. “[T]he existence of a racially hostile environment that is created, encouraged, accepted, tolerated or left uncorrected by a recipient also constitutes different treatment on the basis of race in violation of title VI.” Racial Incidents and Harassment Against Students at Educational Institutions; Investigative Guidance, 59 Fed. Reg. 11448 (Mar. 10, 1994). The victim does not have to be the person harassed, but can be anyone affected by the offensive conduct.
The report notes that Shurtz enjoys certain free speech protections as a tenured law professor, but in this case, the university’s interest in preventing racial discrimination outweighs Shurtz’s claim to academic freedom.
It’s impossible to overstate how radical and dangerous (and wrong) this finding is. As The Washington Post’s Eugene Volokh points out, Oregon’s policy forbids discrimination that arises not just from racial considerations, but a host of other status as well: age, veteran status, sexual orientation, perceived gender, and religion. If a problematic Halloween costume—donned with innocent or even positive intentions—is enough to constitute racial harassment, how easy would it be for the university to make a determination of religious harassment? Volokh writes:
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”).
All of these could be punishable harassment under the university report’s analysis, if they generate enough controversy. And this is so even if they are just general political statements, without any targeted insults of particular individuals. The expression of certain views, however linked they may be to important public debates, is forbidden to University of Oregon professors, at least once the views create enough controversy.
I would add that “perceived gender identity” is a particularly problematic category, given Oregon’s massive rejection of the primacy of academic freedom. A student or professor who persisted in the belief that all people are male or female and should be referred to as “he” or “she” could easily be found guilty of gender-identity-based harassment under this standard. Of course, “perceived gender” is as radically subjective as religious belief: could a professor be disciplined for mocking the tenets of Pastafarianism, or refusing to honor a student’s wish to be referred to as “Your Majesty”?
The report does not specify what Shurtz’s punishment will be—she has already been suspended for weeks. That’s disturbing enough, but the greater concern is the overall climate at Oregon. Unintentional, one-off slip-ups constitute discriminatory harassment, in the university’s view—as long as enough students are offended. It doesn’t matter if they are wrong to feel slighted. It doesn’t matter if the expression in question is a matter of legitimate public interest. It doesn’t matter if the faculty believe that education should, in some cases, provoke discomfort. It doesn’t matter if it happens outside the classroom, and only indirectly concerns the university.
If Shurz had dressed up as a Catholic priest, with the deliberate intention of mocking Catholicism and making her Catholic students uncomfortable, would we not defend her right to challenge religious dogma? I think I know Oregon’s answer: no way. If accidental exercises in controversial expression are prohibited, then the university simply put, does not recognize free speech rights—full stop.