The Texas Attorney General released an advisory opinion concluding that ABA Model Rule 8.4(g) tramples on the freedom of speech and rights of free exercise. In response, Jacob Gershman asked ABA President Linda A. Klein for a statement:
“This proposed rule in no way infringes on free speech or the ability of an attorney to zealously defend any client (or choose not to defend a client) based on the client’s beliefs,” she said, saying it “exemplifies the ABA’s strong policy that there is no place in the practice of law for discrimination or harassment.”
Yesterday I blogged about the University of Oregon’s report, concluding that it could punish a law professor for wearing blackface at a private Halloween party, consistent with the First Amendment and principles of academic freedom. I am working on a followup post, with more analysis of the free speech implications, as well as a critique of the stunning silence of the law professors at Oregon, and elsewhere, in light of this troubling episode. For now, I am relieved to note that Professor Shurtz seems to be fighting back against this inquisition.
STATEMENT FROM UO LAW PROFESSOR NANCY SHURTZ REGARDING IMPROPER RELEASE OF INFORMATION CONCERNING AN INTERNAL INVESTIGATION ABOUT A HALLOWEEN PARTY HOSTED IN HER HOME
On Wednesday, Dec. 21, 2016, the University of Oregon improperly released a flawed investigative report into events surrounding a Halloween party that I hosted in my home. This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light. For example, it ignored the anonymous grading process, the presence of many non-students as guests, and the deceptive emails that created a firestorm in the law school.
I, and my legal advisers, were preparing a response to the draft report. Although the University was aware of our intention to submit our corrections by noon (local time) yesterday and to deal with its errors in-house, the Provost’s office or its advisers cynically decided to try to publicly shame me instead.
As the UO’s press release itself notes, the University is prohibited by law from disclosing personnel matters. But the press release and uncorrected Report act as a supremely public retaliation against me for seeking, even if clumsily, to raise issues of insufficient diversity in American professions. My attorney and I are evaluating our legal options.
###
(Note to reporters and editors: Pending the submittal of our comments to the UO, out of respect for all involved we will not comment any further on this ongoing process.)
Good for Professor Shurtz. Every professor who cares about academic freedom and the Free Speech should be cheering her cause.
In honor of the eight nights of Chanukah, I recently delivered a lecture on “The Eight Jewish Justices” – Justices Brandeis, Cardozo, Frankfurter, Goldberg, Fortas, Ginsburg, Breyer, and Kagan. I spoke at TORCH in Houston, a wonderful organization whose board of director I serve on.
Relevant to the ongoing emoluments clause debate, Seth Barrett Tillman unearthed a 1974 OLC Opinion signed by none other than Assistant Attorney General Antonin Scalia, where the future Justice opines that “when the word ‘officer’ is used in the Constitution, it invariably refers to someone other than the President.”
Granted, in 2009 OLC opined that the emoluments clause “surely” applies to the President. As I noted in this post, that conclusory had no analysis of the text or history of the Constitution. But this position is not set in stone.
In 2012, Jack Maskell of the Congressional Research Service stated “The President and all federal officials are restricted by the Constitution, at Article I, Section 9, [C]lause 8.”
In an updated memo last month by Mr. Maskell, the relevant position changed to “the Foreign Emoluments Clause “might technically apply to the President.” This is a significant revision by CRS.
In a recent Brookings paper, Norman Eisen and Richard Painter, joined by Larry Tribe, disposed this argument in a footnote as “myopic and strained.”
It also has been suggested by one scholar that the Emoluments Clause did not cover elected, as opposed to appointed, federal office holders. See Seth Barrett Tillman, The Original Public Meaning of the Foreign Emoluments Clause: A Reply to Professor Zephyr Teachout, 107 Nw. U. L. Rev. C. 180 (2013). But this idiosyncratic suggestion is at best supported by ambiguous founding-era historical materials, rests upon a strained and counterintuitive textual analysis, and is flatly inconsistent with the recognized purpose of the Clause and the overwhelming thrust of modern (and historical) Executive Branch practice. See, e.g., Zephyr Teachout, Gifts, Offices, and Corruption, 107 Nw. U. L. Rev. C. 30 (2012); Zephyr Teachout, Constitutional Purpose and the Anti-Corruption Principle, 108 Nw. U. L. Rev. C. 200 (2013). Ultimately, only the most myopic and strained focus on the least plausible version of originalism to the exclusion of every other interpretive tool, coupled with a series of highly doubtful conclusions from the historical record, would support the conclusion that the President is not subject to the strictures of the Emoluments Clause. That approach must be rejected.
This is a close question, without any judicial precedent, Tillman has strong arguments based on text and history. I don’t need to remind anyone that four Justices in Noel Canning were willing to hold that “the recess” of the Senate referred only to the break between sessions, and that all intra-seession recess appointments were void. Rather than being “myopic and strained” originalism, I referred to this analysis as originalism in the open fields.
In any event, CRS’s revision reflects the uncertainty of this issue. I am organizing a symposium on behalf of the South Texas Law Review on the emoluments clause. Stay tuned for more information.
Last fall, the University of Oregon’s Federalist Society Chapter invited me to speak about intellectual diversity on the law school campus. I’ve given this lecture before, sometimes as debate, other times as a speech with commentary. To my dismay, the students could not find a single member of the faculty who was wiling to participate in the event. At the time, I offered this nebulous allusion:
So, once again, I debated myself. Of all campuses in the country, this school in particular could use a review of the importance of academic freedom and the First Amendment.
Allow me to expand.
Nancy Shurtz, a tenured professor at the University of Oregon Law School, wore black face to a halloween party. Her costume, which also included a white lab coat and stethoscope, was meant as some sort of social commentary about the book “Black Man in a White Coat.” Nearly two dozen of Shurtz’s colleagues called on her to resign. Shurtz was suspended with pay, pending an investigation. That investigation came to a close on November 30.
Yesterday, the Provost of the University of Oregon released a statement, along with a redacted version of the investigative report, explaining why 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 pursuant to 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 University of Oregon’s position is similar to the argument that the Univeristy of Oklahoma fraternity brothers, who sang racist songs on a bus, could be expelled because it created a “hostile educational environment.” If you haven’t heard this phrase before, get used to it–it is a nebulous standard which will used to punish all manner of constitutionally-protected speech. But this position is a smokescreen. Eugene Volokh explains in this post why there is no “hostile education environment” exception to the First Amendment–especially for speech at private functions.
The report, prepared by a law firm in Portland, elaborates on the “harassment” and “hostile educational environment” argument. In short, because this off-campus conduct substantially affected students on-campus, the school has the authority to punish Shurtz consistent with the First Amendment and principles of academic freedom.
The key analysis begins on p. 22:
The use of a costume component with such negative connotations operated to unreasonably differentiate between students of color and other students.
From the student interviews, it appears clear that for the majority of the students their presence at the event subjected them to an occurrence sufficiently severe to interfere with their participation in University programs or activities.
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. Although the event was off-campus, there was considerable nexus to the law school: Shurtz had invited all students from two of her classes, using the class listserv, using their university email addresses, and including the invitation within an email that also included coursework assignments; several students reported feeling obligated to attend, and several said that once they arrived and were uncomfortable, they felt obligated to remain, and unable to say anything to Shurtz about the costume, given the dynamics of the teacher-student relationship as well as their own discomfort; and ultimately, over half of the attendees were students and over 70% of the attendees were from the law school itself. …
In addition, from the witness interviews, it appears clear that the event and its broader impacts on the University environment have led to interference with participation in University activity for many others as well, including those students who were in attendance at the event.
…
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. Almost every student interviewed reported that they knew the costume was “not okay.”
The report concludes, correctly, that “Shurtz’s statements were made pursuant to her official duties,” so Garcetti is inapplicable. The report also acknowledged that the costume was “related to racial discrimination and is inherently considered a matter of public concern.” As a result, Pickering applies. What is the state’s interest here? Students were upset.
Impediment to Shurtz’s performance in the classroom is likely to be significant, particularly given that students have gone so far as to express to the administration that they are unwilling to take classes with Shurtz in the future. Public damage to reputation is also clearly very significant in this case. Within the law school, students have expressed reactions ranging from disappointment to an unwillingness to take future classes with Shurtz to a desire to transfer to a different law school. Students have also expressed lack of trust and confidence in other teachers, as well as the administration, as a result of Shurtz’s costume and the impacts stemming from that action. …
In the present case, while the anticipation of disruption and harm was considered by the administration, the tangible harm followed quickly after the event, and the disruption and interference with operations has been significant and ongoing.
…
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.
And the conclusion:
Our evaluation, consistent with our finding of discriminatory harassment, is that the effects of Shurtz’s costume constitute disruption to the University significant enough to outweigh Shurtz’s interests in academic freedom and freedom of speech in the type of speech at issue. In addition, the resulting hostile learning environment and impact upon the academic process renders this particular speech to be speech that the University has a strong interest in preventing.
This is a very, very dangerous standard. An off-campus event that a small number of students attended now gives rise to on-campus discipline because students (who did not even witness the event) feel compelled to “avoid the resulting negative environment.” If this is the standard, then anything and everything can create a “hostile educational environment.” Consider several examples I raise in my my forthcoming piece in the Georgetown Journal of Legal Ethics on Model Rule 8.4(g). What if a Professor made any of these remarks at a bar association function that was also attended by students?
Race – A speaker discusses “mismatch theory,” and contends that race-based affirmative action should not be permitted because it hurts minority students by placing them in education settings where they have a lower chance of success.
Gender – A speaker argues that women should not be eligible for combat duty in the military, and should continue to be excluded from the selective service requirements.
Religion – A speaker states that it violates the free exercise rights of for-profit corporations to require them to pay for female employee’s birth control or abortions.
National Origin – A speaker contends that the plenary power doctrine permits the government to exclude aliens from certain countries that are deemed dangerous.
Ethnicity – A speaker states that Korematsu was correctly decided, and that during times of war, the President should be able to detain individuals based on their ethnicity.
Disability – A speaker explains that people who are mentally handicapped should be eligible for the death penalty.
Age – A speaker argues that minors convicted of murder can constitutionally be sentenced to life without parole.
Sexual Orientation – A speaker contends that Obergefell v. Hodges was incorrectly decided, and the Fourteenth Amendment does not prohibit classifications on the basis of sexual orientation.
Gender Identity – A speaker states that Title IX cannot be read to prohibit discrimination on the basis of gender identity, and that students should be assigned to bathrooms based on their biological sex.
Marital Status – A speaker says that it violates the First Amendment to require bakers to design and create a cake for a same-sex wedding or anniversary party.
Socioeconomic Status – A speaker posits that low-income individuals who receive public assistance should be subject to mandatory drug testing.
Would any of these comments made by a professor at an off-campus party attended by students, now result in disciplinary actions? Do they not give rise to “racial hostility,” or minority students “feeling further disenfranchised,” or students changing habits “to avoid the resulting negative environment,” and a “sense of anxiety and mistrust towards professors and faculty.” These are all legitimate feelings, but none give rise to the level of harm necessary for a state institution to punish a professor for speech at a private party.
As I noted at the outset of the post, I visited the University of Oregon on November 9 for a solo-debate. Coincidentally, it was also the mourning after the election. (Pun intended). This timing offered me a unique vantage point to address the debate that was roiling the campus, from a different perspective. A number of students, some of whom had never attended a Federalist Society meeting before, spoke to me after the event. One student told me that he attempted to defend Prof. Shurtz’s First Amendment rights on Facebook, and he was savagely attacked by other students, who charged that he was racist. Another student said that certain professors were dedicating class time to the issue (which upset some students), and other professors were not dedicating class time to the issue (which upset other students). Another mentioned the “fear of retribution” among students on the right. Another said that only one professor on campus offered a tepid response of Shurtz, and this professor was lambasted by colleagues. All noted that there was a tension in the air, and a distinct fear of defending Professor Shurtz’s rights.
These sentiments were expressed by a student who asked a (hard to hear) question in the clip below, at 22:00.
A student asked about how he should react when “ideas themselves that are perceived as harassment.” I knew exactly what the student was asking about, because he was dancing around the elephant in the room. I nudged, “Can you give me an example, please.” He referred to”the incident that happened here” where “the idea that free speech may be impeded or eviscerated” if it itself “perceived as bigoted and racist.” In other words, he was worried that defending the First amendment is itself considered racist. I sensed the awkward glares and stares he was getting. I give the student a lot of respect for voicing his objection in public.
My reply:
The First Amendment protects racism. The First Amendment protects bigotry. The First Amendment protects offensive speech. The classic case is Brandenburg v. Ohio, which you probably studied in ConLaw. You had a KKK leader who was at a rally. This was the most racist thing you could imagine. He’s saying, next month we’re going to march on Washington, and we’re going to show everyone what we’re about, and we’re going to march down south, and do bad stuff. And he was arrested a couple days after the speech for trying to incite unlawful violence. He was encouraging the Klan to march on Washington. Pretty awful stuff. The Supreme Court reversed his conviction. Unless the speech is inciting “imminent” unlawful violence, you can’t punish that form of speech. This entire notion of “harassment’ is a word that is keep being thrown around, but is a word not known in our First Amendment case law. There is no “harassment” exception to free speech. You can find it offensive, but it is within the core of free speech.
I was paraphrasing from a 3rd Circuit decision by then-Judge Alito, who wrote there is no “harassment exception” to the First Amendment.
I then go on to talk about Snyder v. Phelps, and conclude with these remarks:
Simply because the speech is harassing, or deemed racist, does that mean it’s unprotected? What’s going through their mind when [the Westboro Baptists] hold up their signs saying god hates gay people? What’s going through their minds. They are absolutely insane.
I paused, deliberately.
What’s going through a professor’s mind when she puts on black face? I don’t know! It was just for a point to express. And the First Amendment protects the right to make that point in manners that grab attention and offend people. Because very often the way they get people’s attention is to offend them–and then maybe you drag them in for a debate, or maybe not. And that free discourse of ideas is at the core of our First Amendment.
Indeed, whether she intended it or not, Professor Shurtz’s idiotic costume did generate a massive debate at the law school about race. The University’s report noted:
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.
An outside event generated classroom discussions among students and professor on important topics. This is a bad thing?! Had she simply worn the lab coat, without black face, no one would have even noticed. But the offensiveness of her speech served a First Amendment value. This is a positive attribute of free speech, and not conduct that warrants discipline.
I’ll note in closing that this isn’t strictly a left-right issue. Brian Leiter noted at his blog that the letter from Shurtz’s colleagues “reflects poorly on them, and suggests they have no regard for contractual and constitutional rights to academic freedom, including the right to engage in racially insensitive extramural speech.” Leiter added, “Absent a finding that the professor treats students or colleagues in racially discriminatory ways, there is no reason for the faculty member to resign (apologizing might be a good idea though!).” Indeed, the report made no findings of how Shurtz actually treated students in class–it was all based on how students feel. Eugene Volokh observed that “[w]e have reached a bad and dangerous place in American life, and in American university life in particular.” I agree with both.
Finally, lest you think these sorts of examples are limited to the bastions of academia, ABA Model Rule 8.4(g) specifically prohibits “harassment” at “social events” that are “related to the practice of law.” Under the University of Oregon’s reasoning, a private Halloween party that is also attended by other faculty and students would be a “social event” connected to “legal education.” (As an aside, Eugene is a tiny town, and it is not surprising that members of the faculty socialize with other members of the faculty–there aren’t many other outlets!). By the same token, lawyers attending a Halloween party that is also frequented by fellow attorneys would also be at a “social event” connected to the practice of law. If you think this sort of punishment is limited to legal academia, wait till states start adopting Model Rule 8.4(g).
Defenders of the First Amendment must stand vigilant. Incidents like Oklahoma (where the students did not challenge their expulsion) and Oregon (where Shurtz–who is near retirement–may not litigate) establish dangerous precedents that will be cited going forward.
Update: Yesterday I blogged about the University of Oregon’s report, concluding that it could punish a law professor for wearing blackface at a private Halloween party, consistent with the First Amendment and principles of academic freedom. I am working on a followup post, with more analysis of the free speech implications, as well as a critique of the stunning silence of the law professors at Oregon, and elsewhere, in light of this troubling episode. For now, I am relieved to note that Professor Shurtz seems to be fighting back against this inquisition.
STATEMENT FROM UO LAW PROFESSOR NANCY SHURTZ REGARDING IMPROPER RELEASE OF INFORMATION CONCERNING AN INTERNAL INVESTIGATION ABOUT A HALLOWEEN PARTY HOSTED IN HER HOME
On Wednesday, Dec. 21, 2016, the University of Oregon improperly released a flawed investigative report into events surrounding a Halloween party that I hosted in my home. This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light. For example, it ignored the anonymous grading process, the presence of many non-students as guests, and the deceptive emails that created a firestorm in the law school.
I, and my legal advisers, were preparing a response to the draft report. Although the University was aware of our intention to submit our corrections by noon (local time) yesterday and to deal with its errors in-house, the Provost’s office or its advisers cynically decided to try to publicly shame me instead.
As the UO’s press release itself notes, the University is prohibited by law from disclosing personnel matters. But the press release and uncorrected Report act as a supremely public retaliation against me for seeking, even if clumsily, to raise issues of insufficient diversity in American professions. My attorney and I are evaluating our legal options.
###
(Note to reporters and editors: Pending the submittal of our comments to the UO, out of respect for all involved we will not comment any further on this ongoing process.)
Good for Professor Shurtz. Every professor who cares about academic freedom and the Free Speech should be cheering her cause.
