At the University of Oregon, no more free speech for professors on subjects such as race, religion, sexual orientation

Eugene Volokh:

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. I’m skeptical about the soundness of this view: The university report justifies the view by saying that “Blackface minstrelsy first became nationally popular in the late 1820s when white male performers portrayed African-American characters using burnt cork to blacken their skin” and that “wearing tattered clothes, the performances mocked black behavior, playing racial stereotypes for laughs” — but it doesn’t follow to me that wearing black makeup without mocking black behavior or playing racial stereotypes for laughs should be perceived as offensive. Nonetheless, it is a fact (though one that Shurtz apparently didn’t know) that many people do, rightly or wrongly, view this as offensive. (For more on this, see this post.)

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.

Moreover, the report notes that, as part of the uproar, students said things of which the administration disapproved: The report specifically notes that students used “other offensive racially-based terminology during class times in the context of discussing this event and broader racial issues.” It related that “some of the witnesses reported that the students’ reactions to the event were racially insensitive or divisive.” And it apparently viewed such statements as relevant to whether Shurtz’s own speech was properly punished.

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.”

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