At the University of Oregon, No More Free Speech for Professors on Subjects Such as Race, Religion, Sexual Orientation

Eugene Volokh, Washington Post, December 26, 2016

1. Last week, the University of Oregon made clear to its faculty: If you say things about race, sexual orientation, sex, religion and so on that enough people find offensive, you could get suspended (and, following the logic of the analysis) even fired. This can happen even to tenured faculty members; even more clearly, it can happen to anyone else. It’s not limited to personal insults. It’s not limited to deliberate racism or bigotry.

This time it involved someone making herself up as a black man at a costume party (as it happens, doing so in order to try to send an antiracist message). But according to the university’s logic, a faculty member could be disciplined for displaying the Mohammed cartoons, if it caused enough of a furor. Or a faculty member could be disciplined for suggesting that homosexuality may be immoral or dangerous. Or for stating that biological males who view themselves as female should be viewed as men, not as women. Or for suggesting that there are, on average, biological differences in temperament or talents between men and women.

All such speech at the University of Oregon will risk your being suspended or perhaps even worse. Orthodoxy, enforced on threat of institutional punishment, is what the University of Oregon is now about.

2. This all began with a Halloween party hosted by tenured University of Oregon law school professor Nancy Shurtz. (I rely on the facts as described in the university’s report; Shurtz has questioned some of the factual assertions in this report, but these ones appear accurate.) Shurtz had invited her students, something law professors sometimes do; about a dozen students came, and about a dozen nonstudents did, too).

Shurtz had told the students that she would be “going as a popular book title”; she didn’t tell the students up front what it was, but the book was the recent (and acclaimed) “Black Man in a White Coat,” a black doctor’s “reflections on race and medicine” (according to the subtitle). Shurtz’s “costume incorporated a white doctor’s lab coat, a stethoscope, black makeup on her face and hands, and a black curly wig resembling an afro.” The university report states that Shurtz “was inspired by this book and by the author, that she greatly admires [the author] 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.”

But many people find whites putting on makeup to look black to be offensive. {snip}

And this perceived offensiveness yielded a huge uproar at the law school. According to the report, the uproar was partly students’ immediate reaction and partly a result of the administration’s and other faculty members’ discussing the matter extensively at school, including in classes.

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3. So we have speech, at a professor’s home, but at a party to which she had invited her students, which in turn leads to speech by various people at the law school. (There’s no doubt that wearing an expressive costume is treated as equivalent to speech under First Amendment “symbolic expression” purposes.) Some of both kinds of speech are interpreted as expressing offensive messages related to race. What does the university do about this?

The university suspends Shurtz; and then, last week, it releases a report concluding that Shurtz’s speech is indeed properly subject to discipline. The speech, the report concludes, was “harassment,” which violates university policy. Indeed, the report concludes that federal law requires universities to suppress such speech: The report expressly says that “Discriminatory Harassment under the University’s policies is directly comparable to racial or sexual harassment under Title VI or Title VII. ‘[T]he existence of a racially hostile environment that is created, encouraged, accepted, tolerated or left uncorrected by a recipient also constitutes different treatment on the basis of race in violation of title VI.’”

Now when you hear “harassment,” you might think of, say, targeted insults, or perhaps sexual extortion. But “harassment” has become a vastly broader term than that: Simply wearing a costume that offends people based on race is, according to the university, “harassment.”

How is this so? Well, because the use of black makeup “has a very negative racial history and connotations,” it “operated to unreasonably differentiate between students of color and other students.” And that, coupled with people’s reactions to the speech, created a “hostile environment”:

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. Some students have been missing class, avoiding the law school, and changing their study habits in an attempt to avoid the resulting negative environment. Based on both the reaction and lack of reaction from other faculty and professors, students have also felt a sense of anxiety and mistrust towards professors and faculty beyond just Shurtz, with some students considering and seeking out transfers to other schools. A full list of the range and severity of impacts has been referenced above. We find that this environment was and is intimidating and hostile and has impacted a wide range of students from different backgrounds. It is also apparent, given the unanimous response from the witnesses, that a reasonable person who is similarly situated would have experienced such an effect.

And, of course, nothing here is limited to the use of black makeup or even just of racially offensive expression. The harassment policy, the university report notes, bans conduct that creates a “hostile environment” based on “age, race, color, ancestry, national or ethnic origin, religion, service in the uniformed services (as defined in state and federal law), veteran status, sex, sexual orientation, marital or family status, pregnancy, pregnancy-related conditions, physical or mental disability, gender, perceived gender, gender identity, genetic information or the use of leave protected by state or federal law.”

{snip}

All of these could be punishable harassment under the university report’s analysis, if they generate enough controversy. And this is so even if they are just general political statements, without any targeted insults of particular individuals. The expression of certain views, however linked they may be to important public debates, is forbidden to University of Oregon professors, at least once the views create enough controversy.

4. Now University of Oregon policies expressly talk about the freedom of speech and academic freedom:

Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community. Further, as a public institution, the University will sustain a higher and more open standard for freedom of inquiry and free speech than may be expected or preferred in private settings.

Free inquiry and free speech are the cornerstones of an academic institution committed to the creation and transfer of knowledge. Expression of diverse points of view is of the highest importance, not solely for those who present and defend some view but for those who would hear, disagree, and pass judgment on those views. The belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or “just plain wrong” cannot be grounds for its suppression.

The University supports free speech with vigor, including the right of presenters to offer opinion, the right of the audience to hear what is presented, and the right of protesters to engage with speakers in order to challenge ideas, so long as the protest does not disrupt or stifle the free exchange of ideas….

Public service requires that members of the university community have freedom to participate in public debate, both within and beyond their areas of expertise, and to address both the university community and the larger society with regard to any matter of social, political, economic, cultural, or other interest. In their exercise of this freedom, university community members have the right to identify their association or title, but should not claim to be acting or speaking on behalf of the University unless authorized to do so.

Lovely sentiments! But what do they mean? Nothing, when it comes to speech that the university labels “harassment”—which, recall, is apparently any speech that is seen as offensive based on race, religion, sexual orientation, sex, gender identity, and so on, and creates enough of a furor.

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