An Oregon Law Professor’s Horrible Halloween Choice, Racism, Retribution, and the First Amendment

A University of Oregon Law professor has been placed on paid administrative leave for dressing in blackface at an off-campus Halloween party attended by faculty and students.  Her intention was to portray the author of a book, Black Man in a White Coat, which chronicled the racism the author, Dr. Damon Tweedy, experienced as a student at Duke Medical School.  A letter written by 23 faculty members has asked for the professor’s resignation, and a petition signed by over 500 students and alumni supports that push.


The Law School, which is part of a public university, cannot constitutionally fire the professor, Nancy Shurtz, unless her actions violate Title VI, which prohibits discrimination on the basis of race in education.  Otherwise, her actions, are protected by the First Amendment.  Wearing a Halloween costume is surely protected speech. Of course, calling for her resignation is also protected speech, unless she is so pressured to resign that the pressure is tantamount to a forced termination of her employment.

The university and those outraged are correct that wearing blackface to a Halloween party is unacceptable and anathema (as the University President remarked) to the values of equality that any university should be trying to promote.  Shurtz’s costume also reflects truly bad judgment, as the faculty mentioned in its letter.  It is fairly shocking that this sort of thing still happens.

The Law School’s misstep, however, is thinking that firing Shurtz (or even placing her on leave) is the appropriate way to handle this situation.  The Law School cannot visit all of the outrage and hurt from a society still rocked by racial injustice (including UO’s own racist history) on one woman.  The faculty who signed the letter made an even greater misstep when they claimed that they don’t care about whether Shurtz intended to be racist, or whether her actions are protected by the First Amendment – she should resign anyway.

That sentiment, expressed by law faculty, is also anathema to the values critical to higher education.  Once you remove Shurtz’s intentions from the equation (and let’s assume they were not overtly racist- this would be different if she were wearing a KKK outfit or a Nazi uniform or even blackface not intended to raise awareness about racism) – the Title VI implications are much less worrisome.  Although students are rightfully unhappy with Shurtz’s choice, there is no indication that her poor judgment translates to disparate treatment of students.  If that were the case, and if students were actually disadvantaged being in Schurtz’s classes, she should clearly be fired.  But, assuming no racist intent or differential treatment in education, the only way her costume will actually impact the students’ education is if they let it.

The pain the students feel is real, as is the frustration of the faculty.  But allowing this pain, which is derived from a history of injustice, not simply this horrible, ignorant costume decision (that is pure speech), to end the career of one person is also an injustice.  Schultz has apologized.  The University needs to consider all of the values significant to higher education and make a less punitive choice.  One individual cannot be punished for our collective sins.  (Concluding the the University needs even more sensitivity training may also be empirically incorrect, given that Shurtz reflects only her poor judgment –  but we as a society need to determine how best to channel our energies to combat these issues while respecting the diversity of backgrounds and opinions of any student body.) The University is wrong that placing Shurtz on leave is necessary for the safety of campus.  Racial injustice is often an unsafe affair, unfortunately, but this is not an example of that.