The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


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


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."

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."

Let's take religion. Say a professor posts something on his blog containing the Mohammad cartoons (as I have done myself); or say that he displays them at a debate or panel that he is participating on; and say that he has invited students in the past to read the blog or to attend the panel. Then some Muslim students, both ones who are at the event and those who just hear about it, get upset. His colleagues and the administration decide to discuss the matter in detail, which fans the flames—something that could happen with the cartoons as easily as it can with Shurtz's makeup. Under the logic of the Oregon report, such a post would equally be punishable "harassment."

And, of course, this would be even clearer as to deliberate negative commentary on a particular group:

  • Sharp criticism of Islam.
  • Claims that homosexuality is immoral.
  • Claims that there are biological differences in aptitude and temperament, on average, between men and women.
  • Rejection of the view that gender identity can be defined by self-perception, as opposed to biology.
  • Harsh condemnation of soldiering (that would be harassment based on "service in the uniformed services" or "veteran status").
  • Condemnation of people who have children out of wedlock (that would be harassment based on "marital … status" and "family status").

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.

The report concludes: "The University does not take issue with the subject matter of Shurtz's expression, or her viewpoints, but the freedoms under this policy end where prohibited discrimination and/or discriminatory harassment begin." Actually, to be honest, the university does "take issue with the subject matter of Shurtz's expression, or her viewpoints," and concludes that the offensiveness of that subject matter and viewpoints makes it "harassment" and strips it of protection.

Again, contrary to the university's explicit assurances in its free speech policy, the university report shows that "[t]he belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or 'just plain wrong'" would indeed be viewed as "grounds for its suppression." Indeed, even the wearing of black makeup is being suppressed on the grounds that it's seen as "despicable, detestable, offensive or 'just plain wrong'" (the report stressed that "[a]lmost every student interviewed reported that they knew the costume was 'not okay'"). The expression of overtly racially offensive opinions would be just as covered by the university report's logic.

Finally, the report reasons that university professor free speech is limited by the so-called Pickering v. Bd. of Ed. balancing test, under which government employee speech is unprotected if "the State, as an employer, in maintaining the efficiency of its operations and avoiding potential or actual disruption" outweighs "the employee's interest in commenting on the matter of public concern." There is good reason to think that the university misapplied this test here, especially in light of lower court precedent (see, e.g., these posts by Prof. Josh Blackman, Hans Bader, and Prof. Jonathan Turley, as well as Levin v. Harleston (2d Cir. 1992)). Given that universities are supposed to be a place for debate and controversy, the tendency of university professor speech to spark debate and controversy—even debate and controversy that many people find offensive or disquieting—shouldn't strip it of protection in a university community, even if it might be seen as doing so in, say, a police department. But the Pickering test is notoriously mushy, as such "balancing" tests tend to be, so I'll set it aside here.

Instead, I just want to point out the university's view that all its assurances of free speech just don't apply to speech that causes sufficient disruption (even when the disruption stems from the debate that the university itself has fanned). That logic equally covers any controversial speech, even beyond speech touching matters such as race, religion, sexual orientation and the like.

It could apply to speech that interferes with the "efficiency of [the university's] operations"—by upsetting students or faculty, or upsetting alumni and thus decreasing donations—if it's seen as unpatriotic, or antiwar, or anti-environmentalist, or anti-animal rights, or sharply critical of one or another political party, or a vast range of other things. Of course, in practice this principle would only apply to speech that is disruptive and at the same time offensive to the university administration's own political views or at least one department's views.

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.

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.

5. A few closing thoughts:

a. The report stresses that Shurtz invited her students to the party and that some students felt pressured to come to the party because Shurtz had papers of theirs to grade. (Shurtz suggests that the papers were anonymously graded, but let's set that aside here.) In my experience as a student, professors' inviting the class to come to a party was seen as gracious and friendly but not by any means compulsory. Indeed, if students really do feel pressured to come to a party, then that would suggest that universities should just ban any such invitations, because pressuring students into unwanted social interaction would itself be bad, regardless of whether the interactions include offensive political speech.

But in any event, this is no different from the pressure that might stem from a professor's inviting the class to a debate or to a talk, or mentioning that he runs a blog. Indeed, reading a professor's blog is likely to be more helpful to a student's grade than coming to the professor's party, because it can give the student a better perspective on the professor's thinking on various topics that might come up in class—not that I want any of my students to feel pressured to read this blog!

And the report begins by saying that "harassment" is "disruptive" and thus punishable, "regardless of the relative power of the harasser" (emphasis added). So even if professors avoid inviting students to their parties, or studiously limit anything they may wear, display in their homes or say at their parties in order to avoid offense to students, the university's logic would punish (and thus suppress) speech far outside such supposedly coercive social occasions.

b. Some people might view the wearing of black makeup at a Halloween party as too removed from political matters to be protected. But the First Amendment protects humor and artistic self-expression as well as political speech—indeed, if you're not free to joke about something, you're not free to speak about it—and so, I think, do basic principles of freedom for the university community, even apart from the purely legal requirements.

And, more importantly, the report treated Shurtz's expression as related to matters of public concern. The university is thus taking the view that its professors' speech can lead to discipline even when it expresses substantive views on subjects such as race, religion, sexual orientation, gender identity and the like. That's why all the examples that I mentioned above (such as blog posts displaying the Mohammed cartoons, statements about homosexuality and so on) could equally lead to university punishment.

c. Some people have defended "hostile environment harassment" rules against First Amendment challenge by arguing that such rules don't punish isolated incidents of speech but only "pervasive" campaigns of offensive expression. (The legal test prohibits conduct or speech that is "severe or pervasive" enough to create a hostile or offensive environment for a complainant and for a reasonable person based on race, religion, etc.; but defenders of the rules sometimes say that mere speech is generally itself not "severe," and is thus not punishable unless it's "pervasive.") I think this is an unsound defense, partly because even repeated speech is constitutionally protected and partly because preventing speech that is pervasive enough to create a hostile environment requires preventing every instance of such speech.

But the university's position makes clear that even isolated statements are punishable. Here, after all, there was one professor wearing one costume. Yet because that led other people to criticize (or defend) the costume, the professor's one-time speech was labeled "harassment" and treated as being punishable.

d. I often hear various speech restrictions defended on the grounds that "harassment" isn't protected speech. As then-Judge Samuel Alito noted, "There is no categorical 'harassment exception' to the First Amendment's free speech clause." (Saxe v. State Coll. Area School Dist. (3d Cir. 2001).) But beyond that, it's important to understand how "harassment" has morphed into basically "any speech that the authorities view as offensive based on race, religion, sex, sexual orientation, gender identity, national origin, and so on." Bans on "harassment" aren't just bans on targeted, unwanted one-to-one speech (such as traditional telephone harassment) or even repeated speech about a particular person (though even such speech about people, I think, is constitutionally protected unless it falls into the exceptions for true threats or defamation).

Rather, they are attempts to suppress the expression of speech that is perceived as expressing certain political, social and religious viewpoints. Remember that when you hear about new attempts to ban harassment, for instance at lawyer social events.

See this post by Prof. Josh Blackman for more (beyond just what he had written in the other post I linked to above).