There 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.