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A review commissioned by the University of Oregon has found that a law professor who wore blackface to a Halloween party violated the university's policies against racial harassment.

News that the professor, Nancy Shurtz, wore blackface at the party stunned the campus as word of the incident spread and photos surfaced on social media. She apologized and said that she was trying to dress as a book, Damon Tweedy’s memoir about a black man starting his medical career, Black Man in a White Coat. And the report commissioned by the university doesn't challenge her stated intent, which was to draw attention to the book and its anti-racist message.

But the report notes the history of blackface as a tool to demean and insult black people.

And the report includes some context about the party that may be relevant to those whose initial reaction was that what a professor does in her own home and at her own party is not anyone else's business. The report notes that she invited all of the students in two of her classes to attend -- extending invitations in class and via class email lists. The report -- based on interviews with those students -- also notes that some (but not all) students felt that it was wise for their relationships with the professor to attend the party.

"The fact that the event was off campus at Shurtz’s home distinguishes it from the standard classroom environment in which the students can be considered a 'captive audience,' unable to just 'avert their eyes' from something that offends them. However, several students said they felt like they could not leave when they wanted to, despite being offended and uncomfortable, for the same reason they felt obligated to attend, and some said this was because Shurtz had papers of theirs still waiting to be graded."

The report -- by a Portland law firm -- also noted that the university is committed to academic freedom and First Amendment principles. But the report said that these rights are not absolute for faculty members, and that it is appropriate to consider the "disruptive" impacts some speech could have in some circumstances. Specifically, it noted that speech that takes the form of harassment is not protected.

"Actual impacts that we heard from those interviewed included shock, anger, surprise, anxiety, disappointment and discomfort with remaining at the event. Given the number of students who were present for the event, the publicity surrounding the incident, the severity of the costume choice and the level of offense, and the significant and ongoing impacts upon both the attendees as well as the student body, it is clear that Shurtz’s costume was substantially disruptive to the educational environment," the report says.

The report added: "Outcomes and impacts upon the broader student body have been described at length above, but a summary of such impacts includes outright hostility and division between the students, the environment being described by some as 'toxic,' class time being spent on discussing the event and the students’ reactions, the open forum, minority students feeling that they have become burdened with educating other students about racial issues and racial sensitivity, students using other offensive racially based terminology during class times in the context of discussing this event and broader racial issues, feelings of anxiety and mistrust towards other professors beyond just Shurtz, students now avoiding spending time on campus as a result, and some students who are attempting to transfer to a different law school."

These impacts were key to the finding that "the effects of Shurtz’s costume constitute disruption to the university significant enough to outweigh Shurtz’s interests in academic freedom and freedom of speech in the type of speech at issue. In addition, the resulting hostile learning environment and impact upon the academic process renders this particular speech to be speech that the university has a strong interest in preventing."

Two caveats offered by the report concerned factors over which Shurtz had no direct control: concern over a lack of diversity in the law school, and frustrations over the reactions of some students to the incident, which were perceived as insensitive.

Shurtz issued a statement criticizing the report, which she said shouldn't have been released. "This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light," the statement said. "For example, it ignored the anonymous grading process, the presence of many nonstudents as guests and the deceptive emails that created a firestorm in the law school." The statement added that the university was aware that Shurtz was preparing a response, but the provost's office opted not to wait for the response, but "cynically decided to try to publicly shame me instead."

Scott Coltrane, provost at Oregon, issued a statement in which he said that he normally would not have released such a report, but did so because of the intense interest in the case and because Shurtz has already identified herself as the professor involved.

As to the next steps in this case, he said, "In all cases where the university is advised that an employee violated university policy, the matter is reviewed under the appropriate disciplinary process. I have read the report and accept its conclusion. Any resulting disciplinary action remains confidential under university policy."

Concerns About Free Speech

In the days since the Oregon report was released, some commentators who write about free speech issues have raised concerns about the university's findings.

A blog post by the Foundation for Individual Rights in Education said in part, "Students and professors are in trouble if they are at risk for punishment any time their expression motivates rigorous debate on campus. UO’s actions and the report on this incident make clear that that risk is real, and this could play out in any number of disturbing ways. For instance, public discussion of significant current events might well dominate classroom discussions and social media. The outcome in Shurtz’s case means that if someone expresses their opinion on any race- or sex-related controversy in a way that others deem offensive, that person will be held responsible for all subsequent discomfort and disruption -- even if that discomfort is a natural consequence of constitutionally protected speech, and even if the disruption is plainly someone else’s responsibility."

Eugene Volokh, a professor of law at the University of California, Los Angeles, wrote in The Washington Post that Oregon's stance endangered arguments that have been used to defend higher education.

"For a long time, universities have argued that the public has to tolerate the views of professors, even when those views sharply depart from established moral and political orthodoxy, and even when the views create offense and upset (which indirectly often create disruption). That’s how universities have tried to maintain public support, including financial support from legislators and from donors, in the face of such offensive professor views," Volokh wrote. "It looks like the University of Oregon is abandoning that position, most clearly as to certain speech on certain topics, but the logic of the abandonment applies far more broadly. And this makes it hard to see why the public should continue to support the university when it sees professors expressing many other views that members of the public find offensive."

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