University of Oregon violates free speech in Halloween costume punishment

University of Oregon violates free speech in Halloween costume punishment

The University of Oregon suspended a tenured professor for wearing blackface at an off-campus Halloween party, and now is considering additional punishment. The university admits the professor had no ill intent (reports suggest that she wore it in a strange attempt to honor a black physician, by dressing up as the title character in a black doctor’s memoir, “Black Man in a White Coat”). But it claims — falsely — that this off-campus expression of racial insensitivity on a single occasion constituted illegal racial harassment under federal law (Title VI of the Civil Rights Act). In punishing the professor, it violated the First Amendment.

As law professor Josh Blackman notes, the controversy began after “Nancy Shurtz, a tenured professor at the University of Oregon Law School, wore black face to a Halloween party” as part of a costume that “also included a white lab coat and stethoscope.” In response, “Shurtz was suspended with pay, pending an investigation. That investigation came to a close on November 30.”

The University of Oregon’s investigation concluded that Shurtz had created a hostile environment through this mere act, even though constitutional experts such as law professor Eugene Volokh had observed weeks earlier that the professor’s off-campus expression was protected by the First Amendment under court rulings such as Iota Xi v. George Mason Univ. (4th Cir. 1993), which ruled that even a mocking portrayal of blacks by students using blackface was protected by the First Amendment. Moreover, a federal appeals court had ruled in Berger v. Battaglia (1985) that government employees have a First Amendment right to publicly perform in blackface while not on duty. And another federal appeals court had ruled that a professor had a First Amendment right to publish his opinion that blacks were less intelligent than white people. (See Levin v. Harleston, 966 F.2d 85 (2nd Cir. 1992)).

On December 23, notes Professor Blackman, “the Provost of the University of Oregon released a statement, along with a redacted version of the investigative report,” claiming that “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 report’s findings of “harassment” are nonsense. Courts have ruled that far more offensive behavior does not rise to the level of illegal racial harassment, such as occasionally overhearing or witnessing the use of the N-word by co-workers. (See Bolden v. PRC, 43 F.3d 545 (10th Cir. 1994) and Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998)).

As the Supreme Court has explained, the “mere utterance of an … epithet which engenders offensive feelings in a employee,” such as the N-word, is insufficient to constitute racial harassment when it only occurs once.  (See Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986)).

And it is simple common sense that an offensive Halloween costume, which is not even aimed at you, is not as offensive as being called the N-word. (See Gleason v. Mesirow Financial, 118 F.3d 1134 (7th Cir. 1997) (court ruled that “the impact of ‘second-hand harassment’ is obviously not as great as the impact of harassment directed at the plaintiff”)). As Professor Volokh notes, “There’s nothing inherently racist about using dress or makeup to pretend to be black, or white, or Hasidic, or what have you.”

And despite its misleading reference to “applicable legal precedent,” the report completely ignores well-known First Amendment rulings from the Ninth and Fourth Circuit courts of appeals, such as two key court decisions cited by Professor Blackman in his commentary, and an additional one cited by Professor Volokh in his November 3 discussion in the Washington Post (the Iota Xi decision). It thus reflects a contempt for clearly-established constitutional rights, a contempt sufficient to support a denial of qualified immunity in any lawsuit by the professor against University of Oregon officials.

After reviewing the University of Oregon’s investigative report, Professor Blackman observed that the “report completely ignores precedents that are directly on point,” such as Berger v. Battaglia (1985), and Rodriguez v Maricopa Community College District (2010). As a result, it reached a conclusion that was not only “wrong,” but also “dangerous”:

 Let’s start with Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985). In this case, an officer with the Baltimore Police Department performed musical routines in blackface while off duty… As you could imagine, many found his performances offensive. The NAACP and others organized a picket line, and tried to stop Berger’s performances–potentially by ‘physical force’…Because of the threat of violence, additional police forces were called in for backup, leaving other posts ‘unmanned’… the police department received many complaints from the community…The Department asked Berger to “cease all public performances, in any capacity, while on light-duty status’…Berger filed [a lawsuit], alleging a violation of his First Amendment rights.

The trial judge had ruled in favor of the police department, deferring “to the Department’s interests in avoiding future diversions of its resources to cope with threatened disruptions by offended members of Baltimore’s black community.” On appeal, the Fourth Circuit reversed, and ruled in favor of Berger, finding that his blackface speech was protected “artistic expression,” and that the hostile reaction of people reacting to it was not a reason to prevent the speech, since “disruption by others reacting to public employee speech simply may not be allowed to serve as justification for public employer disciplinary action directed at that speech.”

As Professor Blackman notes, “This is a perfect encapsulation of where the University of Oregon’s report went awry. Professor Shurtz’s costume did not cause any sort of disruption, but the punishment was justified by the ‘threatened reaction’ to her costume ‘by offended segments of the public.’ At bottom, the dispute arose only because of the so-called hecklers-veto,” which is insufficient reason to restrict speech.

As Blackman notes, the First Amendment provides stronger protection for speech alleged to be harassing when it is not even aimed at the complainants (such as Professor Shurtz’s costume, which was not aimed at any student, and which many offended parties learned about only second-hand). As he observes, “The Ninth Circuit has addressed a related question about allegedly-harassing speech that is not aimed at an individual,” in its decision in Rodriguez v. Maricopa Community College District, 605 F.3d 703 (2010). That decision ruled that racially charged emails sent by a college professor over a list-serve, that were not specifically aimed at any of the complainants, could not give rise to a harassment claim. Rather they were “directed to the college community,” and thus had wide-ranging protections of free speech. In light of this ruling, Professor Blackman notes, “students claiming offense to something they haven’t seen personally is far too attenuated to justify an abridgment of the First Amendment.” The Ninth Circuit Court of Appeals rejected a racial harassment lawsuit over the speech, even though the professor’s ideas caused racial discord on campus: “his words sparked intense debate: Colleagues emailed responses, and [the professor] replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested.”

Perhaps recognizing the weakness of its claim that the Halloween costume created a racially hostile environment, the University of Oregon’s investigative report seeks to buttress its claim of a racially hostile environment by labeling as “harassment” the “discussions and strong conflicts of opinion” among students about the professor’s speech and whether she should be punished. Essentially, it seeks to turn dissent against censorship into a punishable offense.

On pages 23-24, the investigative report claims:

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. The lack of understanding by some students, coupled with an existing lack of diversity in the law school student body, has led to minority students feeling further disenfranchised from their classmates and the school.

This reasoning contradicts a Ninth Circuit Court of Appeals’ decision saying that negative reaction to a harassment complaint by a complainant’s peers generally cannot be prohibited as retaliation, much less harassment, given the protections afforded by the First Amendment. (See Brooks v. City of San Mateo, 227 F.3d 917, 927 (9th Cir. 2000) (ruling that mere “ostracism suffered at the hands of coworkers cannot constitute an adverse employment action…. Indeed, holding an employer liable because its employees refuse to associate with each other might well be unconstitutional: ‘The First Amendment prevents the government, except in the most compelling circumstances, from wielding its power to interfere with its employees’ freedom to believe and associate.’”)).

The classroom disagreements that the University of Oregon wrongly treats as evidence of a “racially hostile environment” are actually part of a lively discussion of race and gender issues (and free speech issues) that should be encouraged, not censored. Federal courts have recognized as much. When a teacher wrote a satirical letter to the school paper viewed as sexist, and was disciplined by the school board, an appeals court overturned the dismissal of his First Amendment lawsuit, and characterized the disagreements and debate about his letter (including criticism of it) as a healthy sign of lively discussion of gender issues. (See Seemuller v. Fairfax County School Board, 878 F.2d 1578 (4th Cir. 1988)). Debate is not disruption in an academic environment, much less “disruption” of a sort that a university can invoke to justify restrict speech. Instead, it is the very purpose of university to have such intellectual ferment, as the Second Circuit Court of Appeals noted: “the efficient provision of services by a State university’s law school actually depends, to a degree, on the dissemination in public fora of controversial speech implicating matters of public concern,” and “excessive regulation of the speech of faculty members may actually impair the ability of a law school to function efficiently.” (See Blum v. Schlegel, 18 F.3d 1005, 1011-12 (2d Cir. 1994)). It is not the sort of disruption for which a professor can be punished. Moreover, society has a “compelling interest in the unrestrained discussion of racial problems” that militates against censorship. (See Belyeu v. Coosa County Bd. of Educ., 998 F.2d 925, 928 (11th Cir. 1993)).

The University of Oregon’s extremely broad notion of “hostile environment” — treating a single instance of off-campus speech as “harassment” of students it was not aimed at, some of whom only learned about it secondhand — makes the whole University of Oregon racial harassment policy overbroad under federal appeals court rulings.  (See, e.g., Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995)(striking down campus hostile-environment racial harassment policy as overly broad, vague, and viewpoint-discriminatory); Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) (striking down discriminatory harassment policy that did not require showing of severe and pervasive harassment)).

And the well-founded fear expressed by University of Oregon students about even discussing the free-speech issues raised by Professor Shurtz’s punishment shows that there has been a grave chilling effect on the students’ free speech rights as well, sufficient for them to have standing to challenge the university’s racial harassment policy on First Amendment grounds. (See, e.g., Doe v. University of Michigan, 721 F.Supp. 852 (E.D. Mich. 1989) (graduate student could sue over college harassment policy which might be used to discipline him if he expressed his opinion); White v. Lee, 227 F.3d 1214 (9th Cir. 2000) (speakers can sue over investigation that would chill the speech of an ordinary person, regardless of whether the speakers themselves stopped speaking)).

It is particularly ridiculous that the University of Oregon claims that Shurtz’s off-campus speech created a hostile environment on campus within the meaning of Title VI, since such statutes generally reach only on-campus conduct.  Federal courts have tended to dismiss harassment lawsuits over even serious off-campus misconduct under Title VI and its sister statute Title IX.  (See, e.g., Lam v. University of Missouri, 122 F.3d 654 (8th Cir. 1997) (instructor’s off-campus physical assault committed against student did not violate Title IX); Roe v. St. Louis University, 746 F.3d 874, 884 (8th Cir. 2014) (dismissing Title IX harassment lawsuit over off-campus rape of student by another student), citing Davis v. Monroe Cty Bd. of Educ., 526 U.S. 629, 645 (1999)).

Moreover, the Ninth Circuit has made clear that a single incident must be very serious — much more serious than a blackface costume — before it can potentially constitute discriminatory harassment in violation of federal law. For example, it ruled that even an indecent assault in the workplace was not sufficiently severe to create a hostile work environment, when it only occurred once. (See Brooks v. City of San Mateo, 227 F.3d 917 (9th Cir. 2000)).

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. Hans also writes for CNS News and has appeared on C-SPAN’s “Washington Journal.”

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