Only One Professor at OregonLaw Willing to Defend the First Amendment

December 31st, 2016

I’ve written several times about a recent incident where the University of Oregon  punished Nancy Shurtz, a law professor who wore blackface at a private party. Her intent–to raise awareness about the lack of black doctors–was benign, if not misguided. In her only statement, Shurtz said the punishment amounted to “supremely public retaliation.” Now, for the first time, we see a public defense from one of her colleagues, Ofer Raban, who teaches Constitutional Law at UO. (We met and chatted briefly during my visit there in November).

In the Oregonian, Raban writes that the administration is concealing its own role in exacerbating this conflict, and may be acting in retaliation for Shurtz’s complaints about the dean.

First, Raban points out the obvious omission from the report–there was no malice or bad intent. It was a well-intentioned, albeit misguided effort, to raise questions about racial equality.

This is a deeply flawed report, and the university has made a legal and moral mistake in adopting it.  Most astonishingly, the report fails to address the issue that makes this case so legally fraught: namely, that the costume was worn to advocate for racial equality. While the report concedes that important fact, its legal analysis fails to take it into account. For all we know, the analysis would have been the same if the professor had donned the costume at a Ku Klux Klan rally. Moreover, the report not only concludes that a costume intended to advocate for racial equality constitutes racial discrimination, but also makes no attempt to justify this counterintuitive conclusion. Whatever one thinks of that question, the failure to address it is preposterous.

Second, Raban points out that the report doesn’t even mention the Oregon Constitution’s free speech provision, which provides more protections than the First Amendment to the U.S. Constitution.

As for the freedom of speech, the report recognizes that the professor’s expression regarded a matter of “public concern,” which the First Amendment guards with particular rigor. But it then concludes that the university’s interest in preventing disruption to its educational operations outweighs the professor’s rights of free speech and academic freedom.

In another bizarre omission, the report fails to mention or analyze the Oregon Constitution’s free speech provision, which Oregon courts ordinarily address even before the First Amendment since it provides greater free speech protections.

Raban alludes to the fact that the report was not so well-intentioned:

University leaders suspended the professor and commissioned the report from a Portland law firm, which worked under the “direction and guidance” of university lawyers.

Third, Raban gets to the crux of the matter: the administration played a critical role in fanning the flames on campus.

Why were university administrators so keen to adopt this flawed report? Perhaps because the administration itself was responsible for much of the resulting educational disruption, including student outrage, damage to the law school’s reputation and a toxic law school atmosphere.

After all, when the Halloween event first became known, administrators repeatedly failed to inform students of the actual intent behind the costume (of which they were fully aware), or of the professor’s record as a defender of minority rights. And when these facts surfaced, officials doubled down by claiming that her intent did not matter, a position now echoed in the report.

Fourth, Raban alludes to the “retaliation” Shurtz alluded to in her statement:

Why was the administration’s response so conducive to inflaming rather than calming emotions? Admittedly, some misguided administrators may actually have believed the professor’s intent in donning the costume simply didn’t matter.

But we should also note that the professor in question was one of seven law school professors who had complained to university officials about the managerial performance of the law school dean. Isn’t it often the case that the settling of personal scores underlie ideological purification campaigns?

His conclusion is worth repeating over and over again.

Whatever the reason for administrators’ responses, let’s not forget what’s at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom. This is a sad day for the freedom of speech and expression at the University of Oregon.

This editorial takes supreme courage. This is why tenure protections exist–not to allow professors to shirk on teaching and writing after 5 years. Kudos to Raban. Shame on his colleagues who stay quiet.