Oregon Professor Causes Firestorm Over Black Face Costume Worn At Party Off-Campus

shurtz-nancyThere is a controversy at the University of Oregon that embodies our long debate over the free speech rights of employees over statements and conduct in their private lives. Law professor Nancy Shurtz triggered a firestorm after she wore blackface to a Halloween party. She was dressed as Dr. Damon Tweedy, the author of Black Men In A White Coat. The school launched a formal investigation and found that, while there was no “ill intent”, Shurtz violated the school’s anti-discrimination policies. That has caused a debate over the extension of such rules to the conduct of faculty or students off campus and off hours.

Many people would be insulted by the costume of Professor Shurtz who wore blackface makeup on her face and hands as well as a wig with curly black hair. However, the party was in her home. She did invite students and faculty to the party. No one at the party objected to the costume.

Later an enraged student emailed Shurtz about the “disappointing and potentially offensive nature of her costume” on Oct. 31st. That led to a full-fledged investigation and a report prepared by private attorney Barran Liebman and the university’s Office of Affirmative Action and Equal Opportunity. No one at the party told Shurtz that her makeup was offensive, or that she should think about removing it, according to school investigators. While Shurtz issued a heartfelt apology on Nov. 1st, some of her colleagues insisted that she should resign.

The report however found that Shurtz respected Tweedy and was trying to honor or celebrate his work:

“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.”

Nevertheless, a movement of both faculty and students pushed for her resignation or termination. Short is now on paid leave and she was reportedly suspended for the costume. Many want more serious punishment as a result of creating “a hostile environment” at the school. The call for her punishment by faculty offers little recognition, let alone concern, for the free speech implications of such action. Indeed, my friend Eugene Volokh have whether there is any free speech protection left at the University of Oregon.

The question again is one of free speech in conflict such school policies. We have previously seen teachers (here, here, here, here, here, here, here, here, here, here, here, here, here) students (here, here and here) and other public employees (here and here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a prior career in the adult entertainment industry (here).
Even the flying of a flag in the backyard of a police officer was sufficient to terminate her employment.

There are cases that support Shurtz out of the Fourth Circuit, including Iota Xi v. George Mason Univ. (4th Cir. 1993). The case involved a highly offensive display at a fraternity house:

Sigma Chi has for two years held an annual “Derby Days” event, planned and conducted both as entertainment and as a source of funds for donations to charity. The “ugly woman contest,” held on April 4, 1991, was one of the “Derby Days” events. The Fraternity staged the contest in the cafeteria of the student union. As part of the contest, eighteen Fraternity members were assigned to one of six sorority teams cooperating in the events. The involved Fraternity members appeared in the contest dressed as caricatures of different types of women, including one member dressed as an offensive caricature of a black woman. He was painted black and wore stringy, black hair decorated with curlers, and his outfit was stuffed with pillows to exaggerate a woman’s breasts and buttocks. He spoke in slang to parody African-Americans.

The court however ruled that the conduct was still protected speech:

The University certainly has a substantial interest in maintaining an educational environment free of discrimination and racism, and in providing gender-neutral education. Yet it seems equally apparent that it has available numerous alternatives to imposing punishment on students based on the viewpoints they express. 8 We agree wholeheartedly that it is the University officials’ responsibility, even their obligation, to achieve the goals they have set. On the other hand, a public university has many constitutionally permissible means to protect female and minority students. We must emphasize, as have other courts, that “the manner of [its action] cannot consist of selective limitations upon speech.” St. Paul, — U.S. at —-, 112 S.Ct. at 2548; Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2295, 65 L.Ed.2d 263 (invalidating a ban on residential picketing that exempted labor picketing); Schacht v. United States, 398 U.S. 58, 62-63, 90 S.Ct. 1555, 1559, 26 L.Ed.2d 44 (1970) (invalidating a law that allowed wearing military uniforms only in dramatic portrayals that did not “tend to discredit the military”). The First Amendment forbids the government from “restrict[ing] expression because of its message [or] its ideas.” Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972). The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.

Likewise, there is Berger v. Battaglia (4th Cir. 1985. In that case, a police officer dressed in black face in public. Nevertheless, the court found it was protected speech:

Historically, one of the most persistent and insidious threats to first amendment rights has been that posed by the “heckler’s veto,” imposed by the successful importuning of government to curtail “offensive” speech at peril of suffering disruptions of public order. . . . Though this “veto” has probably been most frequently exercised through legislation responsive to majority sensibilities, the same assault on first amendment values of course occurs when, as here, it is exercised by executive action responsive to the sensibilities of a minority.

. . . we hold that Berger’s conduct in performing public entertainment in blackface was constitutionally protected speech and that the defendants as public employers were not justified by any sufficiently weighty countervailing state interest in taking disciplinary action either punishing Berger for that conduct or chilling in any way his continuation of it.

Notably, this is a case where the professor viewed the costume as a positive image and wore the costume at a party in her private home.

There is also Ninth Circuit precedent (as noted by some commentators) in Rodriguez v Maricopa Community College District (9th Cir. 2010). That opinion was written by respected jurist Judge Alex Kozinski and dealt with Professor Walter Kehowski who sent “three racially-charged emails” around the Maricopa County Community College District, where he taught math. The 9th Circuit noted that the school could restrict access to its email system but not restrict speech based on its content in this case. Indeed, Kozinski advised faculty and students to use their right to speech and some simple means to protect themselves from such views:

It’s easy enough to assert that Kehowski’s ideas contribute nothing to academic debate, and that the expression of his point of view does more harm than good. But the First Amendment doesn’t allow us to weigh the pros and cons of certain types of speech. Those offended by Kehowski’s ideas should engage him in debate or hit the “delete” button when they receive his emails. They may not invoke the power of the government to shut him up.

The question remains not just the protection afforded free speech, but, if free speech is to be curtailed by universities, what the standard is for faculty in conducting or expressing themselves.

Professor Nancy Shurtz did not appear eager to fight the suspension or assert free speech rights. She has been highly apologetic and has removed herself largely from the public debate. However, there are indications that she may be moving to assert her rights. she would have a strong basis to challenge the action, though these cases can certainly prove unpredictable in court. It would certainly make for an interesting and potentially important free speech case.

36 thoughts on “Oregon Professor Causes Firestorm Over Black Face Costume Worn At Party Off-Campus”

  1. I think intent matters. If she really admired the author so much that she wanted to dress up as him, then she in no way was mocking African Americans as in the blackface era of Hollywood. How can anyone dress up as an African American they admire without using dark makeup? Sometimes people adore Bob Marley so much they dress up as him for Halloween.

    Should Dan Ackroyd be drummed out of Hollywood because he wore blackface as a Reggae guy on the train in Trading Places? Should the movie be banned? If you wear spray tan and dress up as a Native American for Halloween, is that automatically racist, regardless of intent?

    We need to focus on intent and not only our own feelings.

    And wait a moment. What about Rachel Doleful, the former NAACP chapter president who pretended to be black. She tanned, died her hair, and would treat her hair to make it look African American, using everything from tight perms to braids to dreadlocks. She is still accepted. So, is it OK to pass yourself off as black in everyday life, but never to dress up as someone black whom you greatly admire for a costume party?

    What a silly waste of anger. It doesn’t sound like she’s racist or was mocking anyone. Perhaps they should use reason. It is a university, after all.

    1. “I think intent matters. ”

      That is a good point that is rarely discussed or even acknowledged – evaluation based on the perception of the viewer rather than the intent of the actor.

      How did we come to this point were intent is given so little weight, as though the feelings of the viewer are all that matter.

    1. DF – my mother, who used to teach at a university, once told me that you have to decide which windmills to tilt at.

  2. Opinions are fine, but there are several unanswered questions, starting with how did a picture of the prof make it to the media. The only person who can inform of the facts and not the opinion are the people who are involved.
    I certainly don’t know the policy at UO and it was not discussed here.

    Anyone who starts out a conversation using slurs should be discounted, IMO.

  3. I wonder what the University of Oregon budgets for its Office of Affirmative Action and Equal Opportunity and how much tuition costs and mandatory fees will rise at the university next year.

  4. 103 years we have allowed the ADL – Anti Defamation League of B’nai B’rith and its side kick the SPLC to redefine our Freedom of Speech. Is it no wonder during this century everyone is butthurt about everything?

    We No Longer Love our previous freedoms but are embracing the chains of Tolerance.

    1. The $PLC is a shady direct-mail mill founded in 1971. It has no institutional connection to the Anti-Defamation League.

      The Anti-Defamation League under Nathan Perlmutter and his predecessors was in the business of persuasion. That’s no threat to anyone’s ‘freedom of speech’.

    2. Tb, the ADL and the SPLC, though Leftist organizations, did not “redefine our Freedom of Speech,” nor have they been particularly influential in setting the PC “rules.” They are only marginal and exceedingly small players in the PC world.

      The real force behind the PC movement is the Elite Establishment, consisting of the wealthy controllers of the MIC (military industrial complex). While this group was once commonly thought of as being Right Wing, anti-Communist, the MIC has no political affiliation, and is concerned only with consolidating more money, more power, and more control. The Elite Establishment also knows nor respects any religion. To them, religion is only another tool to set one group of people against another, so that the Elite Establishment can profit from the warfare. They are money-theists, not monotheists.

      During the last few decades, the Elite Establishment reached a decision that the best way to control and manipulate the U.S. population and the rest of the world for that matter, was being promoting a Leftist agenda.

      Once they developed that agenda, they applied their considerable financial and human resources in motion to fully support that agenda. Funding of colleges and universities would be dependent on hiring and promoting a Leftist agenda. On-campus groups promoting Leftist causes would similarly receive funding from the Elite Establishment. The Mainstream Media, controlled by about 7-10 corporations under the direction of the Elite Establishment, soon went to work hiring Leftists, promoting Leftists, and fostering a Leftist agenda in the Mainstream Media.

      Finally, the Elite Establishment hit the third flank of their Leftist agenda by funding politicians and judges supporting a Leftist agenda. That is why today, the Republicans actually follow a Leftist agenda, and why Donald Trump has emerged as public revolutionary response to the Leftist agenda they see taking hold of everyone and everything. A majority of Trump voters are, in effect, rebelling against the Elite Establishment’s Leftist agenda to control the U.S. population.

      Currently, the Elite Establishment is very disappointed that the public rejected its hand-picked candidate Clinton, but the Elite Establishment players have quickly regrouped and have made deals with Trump to get their supporters into key positions to continue their Leftist agenda. Trump has capitulated and has brought on board such people as DeVos and Mattis, who have the false appearance of being “conservative,” but, in fact, are actually in favor of the the same Leftist agenda that the Elite Establishment has ordained.

      Such organizations as the CIA and the FBI are now loaded with Elite Establishment Leftists operators, so the security of the U.S. people will continue to be in grave danger and Islamoterrorists will be given a free hand to do whatever damage they can manage to effectuate.

      Whether Trump will fight the Elite Establishment, which would necessarily turn back the PC clock, remains to be seen. Certainly, the Trump voters elected him to do that, but Trump may now be concerned more with “compromising” to get a few things done, rather than do the wholesale firing of the Leftist traitors in the U.S. Government, including those in the CIA, the FBI, and in the U.S. military. I’m sure that Trump well knows what happened to Jack Kennedy when he threatened to “splinter the CIA into a thousand pieces.” Instead, the CIA would make sure that JFK’s skull and brains were splintered into a thousand pieces in Dealey Plaza on November 22, 1963, carrying out the orders of the Elite Establishment so that their man Johnson could begin the multi-decade, multi-billion-dollar Vietnam War Profit Machine which Kennedy sought to stop.

      1. The military has nothing to do with PC. PC is an imposition on the military.

        “Military-Industrial Complex” was a stray phrase in one of Dwight Eisenhower’s speeches which has been misapplied for decades by cretins like Gore Vidal. Eisenhower was concerned about the effect of interest group politics in a context wherein military expenditure as a share of domestic product had in the course of his career increased 10-fold. We’ve seen in the intervening decades that that the military and its contractors are pikers at that game, so there’s not much point in discussing the matter.

        1. The MIC has EVERYTHING to do with PC. JFK fleshed out the dangers of the MIC in his Secret Society speech. PC didn’t just happen. For PC to exist and to spread as it has required planning and MONEY. That’s where the MIC, under the control of the Elite Establishment, comes into play.

  5. Steve – this stupid battle has moved into the theatre and movies where supposedly you cannot play an Asian if you are not Asian or a white if you are not white or a black if you are not black. I have done plays where the cast was completely white but we needed a black character, so we ‘blacked’ the actor up. This was not racist. This was just because we did not have a black actor audition.

    I have had casts that were multi-cultural where I mixed all the races, which caused to audience to look at the play very differently.

    Lately there has been an email tiff between Margaret Cho and Tilda Swinton over her part as The Ancient One in Dr. Strange. Evidently, in the comics, The Ancient One is Asian and of course Tilda is so white she is translucent. Margaret was offended. Tilda’s emails are very sweet and logical, Margaret’s are bitter. Actors are actors, they can usually play any part.

    1. “Steve – this stupid battle has moved into the theater and movies where supposedly you cannot play an Asian if you are not Asian or a white if you are not white or a black if you are not black. ”

      It is ironic. A few years ago the PC claim was that any ethnic group could play any other ethnic group – that it was the skill and power of the actor that made the character believable.

      Now, without a hint of embarrassment, we have a complete reversal of that position.

      And in literature we have the great debate whether authors of one ethnic group can write believable characters from another ethnic group.

    2. Amen to that, Paul. This PC thing has gotten out of control. Your comments remind me of the controversy involving actor Jonathan Pryce, whom I’ve had the pleasure of meeting some years ago on 45th Street in New York before he ducked into the Imperial Theater actors’ entrance for a performance.

      And there’s an important lesson to be learned here.

      As you probably know, Pryce originating the role of The Engineer, a Eurasian pimp, in the West End musical “Miss Saigon.” His performance received great reviews in England, but when the production transferred to Broadway, the Actors’ Equity Association wouldn’t allow him to perform an Asian character because this would purportedly be an insult to the Asian community.

      To his credit, Cameron Mackintosh, the show’s producer cancelled the NYC production because he believed in the freedom of artistic expression. And to the credit of Charlton Heston and John Malkovich, they threatened to leave the union if Pryce wasn’t allowed to perform in his role. Eventually the AEA backed down because many jobs would be lost, so the AEA made a deal with Mackintosh so that that Pryce could perform in the production as originally planned. Pryce would go on to win a Tony Award for his performance in “Miss Saigon.”

      People need to stand up for the rights!

      1. Ralph Adamo – I read a very nice article by the playwright David Wang about the Miss Saigon controversy. At the beginning he was all for only Asian or half-Asians playing the roles. However, as he aged he changed his mind and now has decided that anybody can play any role.

      2. I recently saw a production of A Christmas Carol, a play set in 1840’s England, where Bob Cratchet and Jacob Marley were played by black men. At first, I thought “how dumb”. Then, I figured it was artistic expression and was ok. Only later did I realize that we as a nation will never get beyond our racial prejudices until we stop viewing people as belonging to a particular race (with exceptions, of course, for things like physical descriptions and statistical analysis). Soooooo, it is definitely not dumb and it is more than ok for persons of one race to portray persons of other races. They are not persons of a particular race. They are merely persons. Cross-racial portrayals assist us in getting over racial prejudices by viewing people without reference to their race, although, to be honest, I doubt that was the intent of the producers in casting black men as 19th century Brits.

    3. Now, in opera, Otello cannot be played in make-up, if the tenor is white. It destroys the entire meaning of the play.

      1. sjrreidhead – Otello was a Moor so there is a good chance he was an Arab, not black.

        1. John Houseman and Orson Welles seem to have been the pioneers in defying the racial theatrical status quo with their landmark all-Black cast version of MacBeth, sometimes called “Voodoo MacBeth” or “Haitian MacBeth.” Before the production had its premier, it was attacked from virtually all sides. Traditionalists attacked the concept because “MacBeth” takes place during the Middle Ages, in Scotland. The far Leftists–in an early example of PC racism–attacked the production because they (incorrectly) claimed that this version was going to make a mockery of Black people, apparently thinking the production was going to be some sort of minstrel show “MacBeth” played for laughs to White audiences.

          Houseman’s and Welles’s “MacBeth” experiment turned out to be a great hit and the production had a successful national tour.

          The lessons of this production, unfortunately, have not been learned, and, consequently, we continue to see examples of racism, reverse-racism, and stifling PC in the theatrical world.

  6. Two thoughts:

    1) “‘The First Amendment forbids the government from “restrict[ing] expression because of its message [or] its ideas.’” Police Dept. v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972).” Amen.

    2) What’s worrying is that a state university law professor with relatively sufficient time, education, research materials, and income, while apparently genuine in her apology, also appears from this blog at least to be rolling over on a speech issue – a millennia-old battleground against tyranny and servitude and calling all legal advocates to maintain what little ground has already been achieved

  7. Many of the PC incidents occur when liberals think they are immune from being sanctioned by the PC Squad. This poor woman thought since she thinks liberal she could put on black face. The PC Police only turn their heads when liberal politicians violate PC Doctrine. Not some lowly law prof.

    1. Amen! She ought to have come out swinging and said that she would wear whatever damn costume she pleased, and if they didn’t like it, she would see them in court. Screw these damn PC Puritans. They go around looking for Hester Primms to make their day.

      Squeeky Fromm
      Girl Reporter

  8. “After the Snowflakes shut up any White guy writing something critical re Black History comes the assault re anyone not Black writing in the entire field of African American History. ”

    Haven’t we already seen criticism of any author who is not black writing on any aspect of AA culture?

    I can’t site an example right now. But I believe that is a hot topic right now. Perhaps some other reader can direct us to examples.

    1. That door swings both ways. Which direction do you suppose we should lean, in favor of not hurting the feelings of others, or not infringing on others’ 1st amendment rights?

  9. The next logical step in the irrationality of the Snowflake Generation is to go after an Historian who is White for writing a book critical of a person or event in African American History.

    After the Snowflakes shut up any White guy writing something critical re Black History comes the assault re anyone not Black writing in the entire field of African American History.

    When will some of the adults start treating the children as children?

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