University of Oregon Quacks out of Both Sides of its Mouth

January 10th, 2017

I have written at some length about the University of Oregon’s decision to suspend, investigate, and potentially discipline a tenured professor who wore a black face costume at a Halloween party at her house. (See here, here, here, here, and here). Michael H. Schill, the University President, who previously served as a law professor, released an unbearably equivocal statement that tries to have it both ways.

First, in several places, President Schill states that the relevant question is how to balance the First Amendment and “racial harassment.”

Two very important principles were potentially in conflict—the right of students to be free from racial harassment and the right of faculty members to exercise free speech. . . .  The law firm weighed the harms from the harassment against the value of her conduct and determined that, according to the balancing test prescribed by Pickering v. Board of Education, the former outweighed the latter, rendering her conduct unprotected.

This is a false equivalency. Harassment is speech protected by the First Amendment. As then-Judge Alito wrote on the Third Circuit, there is no “harassment exception” to the First Amendment. True, courts have upheld restrictions on “sexual harassment” in the employment context, but no court has upheld a right to punish generalized “harassment,” racial or otherwise, in the educational context, let alone speech in a private home.

President Schill tries to wash over this inconvenient truth by blurring the lines between different forms of speech that can, and cannot be punished:

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.

This is wrong. The First Amendment protects the right to speak in a manner others find harassing. This passage in my article on Rule 8.4(g) explains the issue directly:

Demeaning speech, as opposed to defamatory conduct, is constitutionally protected. In FCC v. Pacifica, the Supreme Court recognized “cunt,” one of George Carlin’s seven-dirty words, as protected by the First Amendment.[1] (Some may find a reading of the appendix in Pacifica to be “demeaning” toward women.)  In Snyder v. Phelps, the Supreme Court upheld the right of funeral protestors to hold signs that say “God Hates Fags.” R.A.V. v. St. Paul invalidated a city’s law that prohibited “arous[ing] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.”

[1]. 438 US 726, 751 (1978) (“The original seven words were shit, piss, fuck, cunt, cocksucker, motherfucker, and tits.”) (emphasis added).

Second, President Schill contends that the school had jurisdiction over the incident at the professor’s home because students in Shurt’z class felt compelled to attend.

A law firm that the university hired to do an impartial investigation of the matter interviewed students and faculty members who were at the party and made a factual finding that at least some of the students felt compelled to attend their professor’s party and that they would potentially suffer negative consequences if they left early, despite being deeply offended and affronted by Professor Shurtz’s costume and its strong connotations of racism. The investigators made a factual finding that the behavior by Professor Shurtz constituted racial harassment under university policy V.11.02.

This fails to account for the report’s conclusion. The question wasn’t whether a few students who attended felt offended. The report was grounded on the fact that students who did not attend, but heard about it second-hand, felt offended on campus. That stigma, which the reported concluded disrupted educational activities, permitted the punishment. It is misleading to contend that the report was grounded only on reaction of the few students who actually attended.

Third, President Schill offers a parade of horribles of classroom activities, to justify why Shurtz’s punishment was valid.

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.

As a threshold matter, as Schill acknowleges, Shurtz had a positive intent: she wore the costume to raise awareness about racial inequality. So these arguments are strawmen. But I’ll engage them. Often, when I teach, I will use outrageous language to elicit a reaction from the students. When teaching Cohen v. California, I don’t say “F* the draft.” I say “Fuck the Draft.” Using shocking, jarring language, can inspire or outrage students–but in either event, they pay attention. Asking students to watch “Twelve Years a Slave,” or even read “The Adventures of Huckleberry Finn,” will expose them to such language. If the lessons have a pedagogical purpose, then they should be protected. If they are merely designed to offend, then the professor is derelict in his or her duty to teach–not because of any vague concerns about harassment, but due to the professor not teaching.

Fourth, President Schill insists that professors should not be punished for their “political views.” Here, he is splitting hairs in a dangerous way.

Some commentators have taken to the barricades, and suggested that any finding or action taken with respect to Professor Shurtz will ultimately open the door to firing professors for expressing their political views. Really? In law, we call this the “slippery slope” argument or “the parade of horribles.” While I have tossed and turned for nights over the fact that the university found that a professor’s expressive conduct constituted harassment, I think the reaction of those commentators is overly dramatic and not supported by anything that took place in this case. Go online and you will find that Professor Shurtz remains a member of the law school faculty. Name a single faculty member who has been punished by the provost for his or her political views. This has not happened and you have my vow it won’t happen as long as I occupy my office in Johnson Hall.

It is true that Professor Shurtz was not “fired.” But she was certainly punished. She was suspended with pay, singled out for an investigation (really an inquisition), and subject to undisclosed adverse reaction. Academic freedom is at risk, even short of termination.

The provost accepted the findings of the investigation and, pursuant to university policy, took appropriate actions to make sure that Professor Shurtz understood the gravity of the incident and would not behave in a similar fashion in the future. I am not able to divulge the nature of these actions because university policy mandates confidentiality.

How can President Schill stand by and boast no one was fired, but tolerate the punishment of Professor Shurtz?

Finally, President Schill states that the law firm was “hired to do an impartial investigation of the matter.” As I noted in this post, the report was woefully inadequate. It failed to acknowledge a number of precedents that are directly on point, and didn’t even mention how the Oregon Constitution provides greater protection for free speech.

In closing, President Schill tries to have it both ways. He writes:

When faculty members pursue their avocation—teaching students and conducting research—they must be able to say or write what they think without fear of retribution, even if their views are controversial, and even if their research and their views risk causing offense to others. Otherwise, advances in learning will be stunted. This freedom of speech includes the freedom to share political views, academic theories, good ideas, and even bad ones, too. It includes speech that offends others. Without academic freedom we could scarcely call the UO a university.

This should be the end of the matter.

At AALS, a number of professors–many I had never met-came up to me and thanked me for writing about this issue. They were all glad I spoke out about these issues, because they were afraid of doing so themselves. I appreciate their praise, but I am saddened that academics, shielded by tenure (something I lack!), were unwilling to defend academic freedom. I’ll keep writing. I hope others keep reading.