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Black facing matters?

A report commissioned by the University of Oregon surrounding a professor’s Halloween costume at a party, has raised concerns for advocates of the First Amendment.

The report, released on December 21, 2016, detailed the findings of investigators commissioned by the University of Oregon to determine whether or not professor Nancy Shurtz violated the university’s policies on discrimination when she wore an offensive Halloween costume at her own house party last October 31.

Shurtz, a professor of law at the university, hosted a Halloween party at her home to celebrate the holiday and also one of her current student’s birthdays.  She invited students from her two classes, alumni, and faculty to attend the event.  She invited them via email and in–person, giving hints that she was “going as a popular book title,” but revealing no further details.  When party goers arrived to Shurtz home, they were met with a range of emotions that ranged from shock to anger to absolute discomfort.

“The use of her blackface was patently offensive and reinforces historically racist stereotypes.”

Shurtz was dressed in a white doctor’s lab coat, a stethoscope, a curly black wig resembling an afro, and black makeup on her hands and face.  Her costume was modeled after a book titled Black Man in a White Coat by Damon Tweedy.  The book centers around the story of a black medical student and the racism he experienced in medical school.  Her explanation for the costume was that she greatly admired the author and found the shortage of racial diversity, particularly of black men, in higher education extremely disheartening.  Shurtz sent in an email to her class the next day that she intended to “teach with this costume” and her public apology conveyed the message that she wanted to start a discussion on racism in society, educational institutions, and profession.  The university publicly condemned Shurtz’s actions, calling the use of her blackface “patently offensive” and stated that it “reinforces historically racist stereotypes.”  Shurtz was placed on administrative paid leave on November 3, 2016 where she has remained since.

The report, commissioned by the university, determined its findings from the evidence of interviews with individuals in attendance at the party, including Shurtz, and documentation of the various communications that Shurtz sent out regarding the party invitation, her explanations regarding the costume, and her apologies in its aftermath.

The University of Oregon’s policies define discriminatory harassment as “any conduct that either in form or operation unreasonably discriminates . . . on the basis of age, race, color . . . that is sufficiently severe or pervasive that it interferes with work or participation in any university program or activity . . . because it creates an intimidating . . . environment for the individual who is the subject of such conduct.”  Notably, the policies highlight that the university will respect the rights of freedom of expression and academic expression.

“In donning a costume [with blackface] . . . [Shurtz] operated to unreasonably differentiate between students of color and other students.” 

In determining that Shurtz violated the university’s policies, investigators stated that “in donning a costume [with blackface] . . . [Shurtz] operated to unreasonably differentiate between students of color and other students.”  These actions were sufficiently severe enough to interfere with students’ participation in university programs or activities.  For example, the law school environment had become antagonistic.  Professors had devoted up to half an hour of class time to discussions regarding the strong difference of opinions surrounding Shurtz’s actions; students were missing class because they did not want to further discuss the situation, and some students completely removed themselves from the law school environment beyond class attendance.

The report analyzed Shurtz’s actions under the university’s academic freedom and freedom of speech policies, as well as through her First Amendment protection as a citizen.  The investigative team found that Shurtz’s statements were not made pursuant to her official duties as a professor because her costume was not related to the subjects that she taught–tax planning and tax policy–nor did she incorporate information she was privy to by virtue of her teaching post at the university.  The investigators then determined that under the Sixth Circuit Court of Appeals’ decision in Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001), Shurtz’s costume did address a matter of public concern inherently because of her intent to express concerns about racism in our society.  The investigative team also found that Shurtz genuinely wore the costume in earnest and did not expect to have to explain her costume to the extent that she did at the party.

“…the last step in the First Amendment analysis is referred to as the Pickering balancing test.” 

When a public employee has expressed speech as a citizen that was not made under the scope of the employee’s official duties, but that has addressed a matter of public concern, then the last step in the First Amendment analysis is referred to as the Pickering balancing test.  This test, derived from Pickering v. Bd. of Educ.,  weighs the interest of the State (in this case, the university) in maintaining the efficiency of its operations and avoiding potential or actual disruption, against the employee’s interest in commenting on the matter of public concern.  The balancing test requires considerations of the necessity of close working relationships in the workplace to fulfill responsibilities, whether the expression was directed at a specific person, public damage to reputation, whether the teacher’s position presumes she has greater access to real facts, and impediments to the teacher’s performance in the classroom.

The investigators seemed to morph the first factor by analogizing the close relationship to the respect required of students for a professor to teach effectively, rather than the way the factor suggests it pertains to a professor–to–professor relationship in the workplace environment.  The next factor, directed at a specific person, was dispensed with rather quickly because it was quite clear that Shurtz’s expression was not directed at a specific person.  The investigators also determined that Shurtz’s position as a law professor did not provide her any greater access to real facts because demographic data about the school is available to students and the general public.  They seemed to hang their hats on the factors surrounding the damage to Shurtz’s reputation and the impediment to her performance in the classroom, explaining that “students have gone so far as to express to the administration that they are unwilling to take classes with Shurtz in the future . . . [and] have expressed reactions ranging from disappointment to . . . a desire to transfer to a different law school.”

“…[s]peech that rises to the level of harassment is speech that a learning institution has a strong interest in preventing.”

Notably, when the report reached the evaluation of the university’s policies against discrimination and its interests in control over the employment environment, versus the employee’s rights to free speech and academic freedom, investigators used the Bonnell court’s reasoning that “[s]peech that rises to the level of harassment – whether based on sex, race, ethnicity, or other invidious premise – and which creates a hostile learning environment that ultimately thwarts the academic process, is speech that a learning institution has a strong interest in preventing.” It is at this point that the investigators seemed to bootstrap themselves to the court’s reasoning and effectively found that Shurtz’s costume constituted a disruption significant enough to outweigh her interest in freedom of speech by quoting the court and leaving it to the wisdom of the law.

It is this particular finding that disturbs First Amendment advocates immensely.  George Washington Law professor Jonathan Turley wrote an op–ed piece regarding Shurtz’s situation and cited several Circuit Court of Appeals decisions that rule in favor of Shurtz’s free speech protection.  Most notable among these decisions was Berger v. Battaglia, which was a case involving a police officer who refused to stop wearing blackface in public and as punishment, was reassigned and relieved of his police authority.

The Battaglia Court found the officer’s actions to be protected speech, reasoning that the prohibition of his wearing blackface was a classic example of first amendment rights being violated through the “heckler’s veto.”  A “heckler’s veto” occurs when the government restricts offensive speech because there is a threat of disruptions of public order.  Professor Turley posed the question that if free speech is to be curtailed by universities, what standard are faculty supposed to govern themselves by when conducting or expressing their own academic ideas.

“The results of Shurtz’s case convey a precedent that if someone expresses an offensive opinion that causes discomfort will find herself responsible.”

The Foundation for Individual Rights in Education (FIRE), who typically champion free speech rights at educational institutions, also published a blistering op–ed piece surrounding the university’s explanation for its decision.  Susan Kruth, writing on behalf of the foundation, urged that the results of Shurtz’s case convey a precedent that if someone expresses an offensive opinion on any race– or sex– related controversy, that person will effectively find herself responsible for any discomfort that may be felt, even if it is a natural consequence of constitutionally protected speech.

Upon the release of the report by the university, Shurtz released her own statement informing the public that the report contained numerous inaccuracies and conveyed information in a manner that was used to publicly shame her.  She has since retained counsel to review her legal options.  Because the university did find that Shurtz violated university policy, they have continued with the process of referring the matter to their disciplinary process; however, university policy requires them to keep Shurtz’s punishment confidential.  As more universities begin to limit individuals’ free speech rights, Shurtz’s situation seems to be another piece in the puzzle of what free speech really is on college campuses and how the First Amendment interplay should, or perhaps should not, affect the actions of public institutions throughout the country.

Tommy Harvey III
About Tommy Harvey III (6 Articles)
Tommy Harvey III is a third year law student and serves as an Associate Editor for the Campbell Law Observer. He is originally from Atlanta, GA and received his undergraduate degree from the University of Miami. Tommy has worked for the United States Attorney’s Office, Eastern District of North Carolina and the Mecklenburg County District Attorney’s Office in Charlotte, NC. His legal interests include Civil Rights Law, Constitutional Law, and International Law. Tommy is a member of the Campbell Law Trial Team, and serves as a peer mentor as well as the current Vice President and past Treasurer for the Campbell Law Black Law Students Association.