The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Paul Caron (Tax Prof Blog) has the story; see also here. My view: There's nothing inherently racist about using dress or makeup to pretend to be black, or white, or Hasidic, or what have you. Indeed, if someone wore blackface and imitated an accent in a way that mocked blacks, she could be faulted for mocking blacks (just as somehow dressing up as an Orthodox Jew to mock Orthodox Jews could be faulted for that). But the notion that making oneself up to look black is just somehow per se racist strikes me as very hard to defend, whether one is trying to play President Obama (or, for that matter, Othello) or the title character in a black doctor's memoir ("Black Man in a White Coat," which is apparently what the professor was dressing as) or Michael Jackson.
Indeed, the whole point of dress-up events is to dress (and make yourself up) as something you are not. The fact that some people have made themselves up as blacks in the past in order to mock blacks doesn't tell us that all such makeup is improper—much less that it should be cause for resigning. And the policing of what people do at parties at people's homes only makes matters worse.
Nor am I influenced by the notion that the professor should resign because her decision shows "poor judgment" because she should have known that this would be offensive. Perhaps she wasn't as careful as she might have been—but it's appalling that people should feel the need to choose how they dress for costume parties with such care.
We rightly wouldn't countenance calls for someone to resign because they wore something at a party, or said something at a party, that, say, veterans or evangelical Christians would have found offensive. I think that people wearing Che Guevara shirts are displaying abominable judgment, but that's no basis for pressuring them to resign or for launching university investigations (which is indeed happening here). And those are people who are actually wearing, seriously and not as a joke, the image of a cold-blooded killer. (If someone dresses as, say, Adolf Hitler or Joseph Stalin or Mao Zedong for a costume party, in a situation where—unlike with Che shirts—there's no indication of respect or praise of the person being depicted, that strikes me as even less objectionable, loathsome as the real Hitler, Stalin and Mao were.)
There's no doubt that humor, whether through overt comedy or joking around in costume, is influenced by social conventions and is a matter of taste and judgment. Changing attitudes may well influence people's choices; some amount of such social response is inevitable, and perfectly proper. (To return to the Che analogy, maybe fewer people would wear such shirts if others politely pointed out that the real Che was an appalling human being, a leading figure in an appalling regime that has been oppressing people for more than 50 years and continues to do so today.) I dressed as a woman for Halloween my first year of law school—a pretty thoroughly done-up one, I like to think—and my sense is that my classmates were pretty amused. In a social context where I expect that many wouldn't be amused, though, I wouldn't have dressed that way, since the whole point was to try to amuse people.
But this sort of social give-and-take is nothing like the demands for ending people's professional careers, or attempts to use government power to restrict speech. (For a case involving the First Amendment and student blackface, although in a situation that did seem like mockery of blacks, see Iota Xi v. George Mason Univ. (4th Cir. 1993).) We have reached a bad and dangerous place in American life, and in American university life in particular.