First Monday Musings: On Academic Freedom, Administrative Fairness, And Blackface

The intent of the professor who wore blackface as part of a Halloween costume matters, according to Dean Vikram Amar.

Dean Vikram David Amar

Dean Vikram David Amar

I had intended to write this month about bar passage rates and the steps we at Illinois took this year (that I hope contributed to our strong results relative to other good schools), but given the recent flap at the University of Oregon over a law faculty member’s wearing of a costume that included blackface at a private, off-campus Halloween party attended by students and faculty members, I think some reflections about “academic freedom” are in order. Although I am a law dean, I express here my own views, not those of my law school or university.

According to press accounts, tenured Oregon law professor Nancy Shurtz was placed on paid administrative leave after her use of blackface became known. UO President Michael Schill, himself a former law dean, issued a University statement saying: “We condemn [her] action unequivocally as anathema to the University of Oregon’s cherished values of racial diversity and inclusion. The use of blackface, even in jest at a Halloween party, is patently offensive and reinforces historically racist stereotypes. It was a stupid act and is in no way defensible.”

Professor Shurtz explained that her costume was inspired by Damon Tweedy, an African-American doctor who penned the bestselling memoir Black Man in a White Coat: Reflections on Race and Medicine: “I chose my costume based on a book that I read and liked. . . I thought I would be able to teach with this costume. . . . I am sorry if it did not come off well. I . . . would not want to offend.”

Meanwhile, a letter signed by 23 of her Oregon law faculty colleagues calls for her resignation, saying “if . . . you did in fact wear blackface to a Halloween party, you need to resign. It doesn’t matter what your intentions were. . . Your actions implicate all of us and our community. . . . ”

My first observation is that notwithstanding talk in some Supreme Court cases about the importance of “academic freedom” and the special role university faculties play in American democracy and society, it is not clear that even tenured public universities professors enjoy any special expressive latitude, at least under the First Amendment. Indeed, the First Amendment in many respects protects public university students significantly more than faculty, because students are regulated individuals (campuses are like small municipalities), whereas faculty are government employees. Settled First Amendment doctrine gives government far more latitude to regulate the speech of its workers than the speech of its citizenry, both because the smooth functioning of government is an interest that is weighed against free speech, and because (in some settings) government itself speaks through its employees. These basic notions are embodied in the Supreme Court Pickering/Connick/Garcetti line of cases, and whether or not the Garcetti framework applies with full force to professors, they can suffer negative consequences for expression that would be fully protected if uttered by students.

The Oregon case is a good example. Does anyone think the U of O could have even temporarily suspended a student at an off-campus, private party for dressing up in blackface?

Sponsored

Indeed, close inspection reveals that professors may fare more poorly even than many other public university employees. For starters, government discrimination concerning the content of public professor speech is inevitable and necessary (in a way that is not true for other public employees). Public university employers invariably must make decisions about hiring, promotion, retention of professors based on the content (even the viewpoint) of what these professors say and write. If a building maintenance worker on campus prominently proclaims his birther views, he may be immune from sanction. But if an American history professor does, that shoddy evaluation of historical facts can be used against him in professional assessments.

None of this means that public universities can use their content-based authority over faculty as a means of censoring political expression that is fair game and unrelated to one’s job as a professor. An administrator punishing a faculty member for urging, on her own time, the repeal of Obamacare is different than the administrator determining that the faculty member’s article arguing Obamacare is beyond Congress’ constitutional powers is poor scholarship that cuts against promotion.

Importantly, off-campus speech can sometimes affect credibility in school, and First Amendment cases recognize that government may sometimes take account of “off-the-job” expression in deciding whether a person is fit to perform a public job. If a university groundskeeper is the leader of local KKK chapter, he is not (by virtue of his KKK activities) incapable of being an effective groundskeeper. But if a public school law professor is a KKK leader, can he really be effective and credible in teaching minority (or white) students? Even entities that chafe against “civility” being used to rescind a faculty job offer distinguish between civility and “professional fitness,” on which off-campus and private expressive activities might reasonably bear.

My second observation is that the First Amendment is not the only potentially relevant legal constraint. Due process (are faculty clearly told what they cannot say so they are not sandbagged?), contract law (tenure is often a contract concept), and state constitutional protections may give public faculty members more latitude than does the First Amendment. And these extra protections may be perfectly appropriate if we do take seriously historical notions of academic freedom.

My last observation is an important one, and that is that critics of Professor Shurtz have themselves erred. President Schill’s quick characterization of Professor Shurtz’s use of blackface as being “in jest” is at odds with her own explanation, and we need remember that there has been no process yet to determine any actual facts. Shurtz’s 23 faculty colleagues assert that her “intentions [don’t] matter.” But whether we are interpreting the First Amendment or deciding whether someone should be required to give up her very livelihood, intent ought clearly to matter a great deal. After all, the reason (correctly identified by those calling for her resignation) that Shurtz’s actions warrant serious scrutiny is that they may undermine her (and the university’s) trust and credibility with students, alumni and the community. But wouldn’t students, alumni and the outside world want to know why she did what she did in deciding how much less they like and trust her and the law school? If she did it to mock African-Americans (or merely “in jest” because she is flippant about race), aren’t they likely to be much more angry and disaffected than if she did it to support the cause of racial equality (like the author in Black Like Me who feigned blackness to document racism), even if her attempt was clumsy, ill-advised and ultimately counterproductive? Again, no process has yet found the full facts (I have no familiarity with Professor Shurtz and am not vouching for her sincerity). But the idea that intent is irrelevant when heavy consequences like resignation are being considered runs counter to most areas of law and moral intuition. And lawyers – especially law professors who are teaching students how to frame arguments — ought to take care to appreciate that.

Sponsored

Black Man in a White Coat: A Doctor’s Reflections on Race and Medicine
[Amazon (affiliate link)]

Earlier: It’s After Halloween, So OF COURSE We Have To Talk About Law Professors Wearing Blackface


Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.