Home / General / Bad Applications of Anti-Harassment Law Should Not Be Used to Justify Mostly Eliminating Anti-Harassment Laws

Bad Applications of Anti-Harassment Law Should Not Be Used to Justify Mostly Eliminating Anti-Harassment Laws

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I agree with the bottom line of Eugene Volokh’s analysis here: Shurtz’s foolish decision to wear blackface at a party to which her students were invited is not legal harassment and, as an isolated incident, should not be a firable offense. (Although I remain unclear what exactly the sanction is: is it just a temporary suspension with pay? Is the university moving to fire her?) But there are a couple of problems with Volokh’s analysis:

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.)

Oh come on. I’m sure that Shurtz had an elaborate rationalization for why her use of blackface was a subtle attack on racism, but 1)the reaction to her use of blackface was entirely predictable and not in the least irrational and 2)it is beyond belief that Shurtz was unaware of the likely reaction. To state the obvious, the students seeing Shurtz in blackface were highly unlikely to be aware of the context of a fairly obscure year-old book and to immediately make the association. They were much more likely to see an affluent white woman wearing blackface, and to be perfectly reasonably offended by this. In an academic setting — and while it was a party at her house, if you’re inviting students from an ongoing class you should be acting as if it’s a classroom — you have to consider your audience and the context from which they’re viewing your actions. Here’s a handy rule: if you’re a white person and wondering whether you should wear blackface, the answer is “you shouldn’t.” And if you’re not wondering you probably should be.

Again, I don’t think Shurtz’s actions were in themselves legal harassment and I think they are therefore protected by the First Amendment and, like George Ciccariello-Maher’s witless and counterproductive tweets, by principles of academic freedom. But if you’re going to defend them on the merits or implicitly criticize the students who were offended, that’s where I get off the bus. A plea to my fellow white academics: if you want to try out your edgy race-related material, there’s probably an open-mic night at a local comedy club. Even if you were the next Richard Pryor, which you almost certainly are not, it’s unlikely to be an effective pedagogical technique, and it undermines the equality and dignity of your students.

This is even more disturbing:

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).

There are very real dangers in over-broad interpretations of anti-harassment law, and I think the University of Orgeon was guilty of that here. But there are also real dangers in excessively narrow interpretations of what constitutes harassment, and I think Volokh is guilty of that here. He would seem to be implying, for example, that no amount of sexual interest shown by a faculty member towards a student could constitute harassment barring something like a direct quid pro quo threat to lower grades if sexual favors are not granted or something similar, and at public universities hitting on students is not conduct but speech protected by the First Amendment barring a direct threat. This is also wrong. There will always be marginal cases and line-drawing is not always easy, but “anything but true threats or defamation is protected” is drawing the line in the wrong place. But one danger of administrative over-reaching is that it gives ammunition to libertarian skepticism about anti-harassment law.

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  • Murc

    Friendly reminder that Eugene Volokh thinks that torture and vengeance should be explicit, openly pursued goals of our legal system, that he’s happy to give a platform to a crazy man who thinks that given a choice between taxes and global extinction, global extinction is the more moral option, and that nobody should, ever, assume he is arguing in good faith or take him seriously on anything.

    • MPAVictoria

      Seconded. The man is a moral monster not much above Bill Kristol.

      • Dilan Esper

        You don’t have to like Volokh, but this sort of stance is highly anti-intellectual and fallacious (ad hominem). The espousal of bad ideas in one or more areas does not mean that all of a person’s ideas are bad or that you should never engage the person.

        • Murc

          The espousal of bad ideas in one or more areas does not mean that all of a person’s ideas are bad or that you should never engage the person.

          You are wrong. Certain ideas are so malevolently wrong-headed they call into question the actual intelligence of the person espousing them and render all other ideas they espouse suspect purely because of the source. If Butcher’s Bill Kristol told me the sky was blue, I’d demand independent third-party verification.

          Similarly, some views are so abhorrent they render the person holding them unworthy of good-faith presumptions and they should be engaged only on the premise that they’re a morally bankrupt liar.

        • Captain Oblivious

          How the fk is pointing out Volokh’s very real and objectively verifiable moral failings “anti-intellectual”.

          Do academics deserve kind of free pass on being assholes?

          • Murc

            There’s a certain kind of person who thinks that arguments should always be engaged with in good faith and on their isolated merits; that considering the person making them and their history and character is somehow bad form or not legitimate.

            • DAS

              I know a good number of people, some of whom consider themselves to be liberals, who think that every argument should be treated as if it were made in good faith, no matter how morally blinkered or intellectually empty that argument is … unless it’s an argument made by anyone more liberal than, say, Chuck Schumer. In which case the argument can be dismissed because the person making it is clearly an extreme leftist who wants to redistribute all wealth, turn the USA into a socialist dystopia and who is also probably antisemitic as well.

          • DAS

            Do academics deserve kind of free pass on being assholes?

            As an academic and an asshole myself, I sure do hope so ;)

  • medrawt

    Ten years ago I decided it was easier to understand Volokh’s comments on the passing scene if you took it as a principle that he doesn’t really comprehend emotions, culture, social history, or people in general.

    • Origami Isopod

      He’s a libertarian, so.

    • timb

      This, I think, with a nod to Murc, is what Murc was getting at. Eugene’s intelligence enables him to imagine that we’re all experiments for his enjoyment. He doesn’t understand people or relationships…

    • Murc

      Ten years ago I decided it was easier to understand Volokh’s comments on the passing scene if you took it as a principle that he doesn’t really comprehend emotions, culture, social history, or people in general.

      This is far too generous to Volokh.

      He absolutely understands all the things you enumerate; it’s just his stances with regard to them all are abominable. But like many rightist intellectuals, he recognizes that he can’t explicitly say “certain classes of people deserve everything they get” and “freedom means the freedom of the powerful and privileged to do as they please, and restricting this freedom is not only counterproductive but actively immoral” and still be considered respectable in precisely the ways he wants to be, so he has to construct elaborate obfuscatory structures.

      Sometimes the mask slips, tho.

      • medrawt

        Perhaps; on a related note, I also stopped reading him about ten years ago, so my recollections are neither fresh nor up to date. At the time he certainly wrote plenty of things which angered me, but I also recall genuinely thinking that there was something off-kilter about him – low empathy/emotional intelligence combined with an over-reliance on “logic” (not actual human logic!) as a benchmark for reasonable human behavior.

        (Bluntly, ten years ago I would’ve described him in a way I wouldn’t today, because I wasn’t as concerned with insulting neuro-atypical individuals by conflating them with neurotypical weirdos and assholes.)

        • bobbo1

          Exactly this. I find it so infuriating when he says things like:

          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 [etc.]

          I feel like I am reading a junior high school book report written by a robot. It wouldn’t be unreasonable to conclude that he had absolutely no idea what blackface was before writing this piece.

          • A friend of mine and I used to identify this as the “clever boy” quality. Bookish children have a tendency toward a kind of disingenuous hyperrationality — you know, the kind where the dictionary definition of a word matters more than the common understanding, and where anything that is not explicitly forbidden is permitted, that kind of thing. She and I noticed that men seem more likely to retain this tendency into adulthood, and some (like Volokh) even make careers out of it. I have to occasionally consciously course-correct when I find myself acting like that myself. I see it on the internet all the time, and it’s endemic in the libertarian/neoreactionary communities, as well as among programmers.

            The antidote is empathy, pretty much, and at its extreme it seems to develop into an active resistance to empathy, where emotion is tainting one’s pure logic. One catchphrase is “politics is the mindkiller”, but it’s really an invocation against empathy.

            • William Berry

              Excellent! “The Clever Boy” quality (and it’s almost always a boy!). Sometimes it takes a good name to really solidify a concept.

              Copy/ pasted into my MiscWebQuotes Doc for future reference (to be used with proper attribution, of course).

              • Captain Oblivious

                There’s no shortage of Clever Girls, either.

                The common thread is their belief that other people are too stupid to see through their hyperrational bullshit.

                • Oh, sure. I do think society encourages and/or tolerates it more from males, though. Women are criticized more harshly for being insufficiently empathetic.

            • tsam

              These people are REAL hoot at parties and other social gatherings.

            • Solar System Wolf

              Have you met my ex? You describe him so well.

              • tsam

                Ugh–that must have been…trying. People like that induce rage in me faster than anything. You absolutely CANNOT have a normal conversation with them.

            • timb

              Someone tweeted to me today that a politician’s “love of the Confederate Battle Flag makes him a fan of white supremacy how?”

              Allegedly, this person’s a girl. Still, that’s exactly the conundrum. Prove what every adult colloquially knows

              • tsam

                If I was stupid enough to engage with that crap (which I occasionally am), my answer would be: “Don’t play dumb. There’s no way you’re that stupid.”

                • N__B

                  You’re an optimist.

              • I feel like everyone has the capacity for this kind of disingenuous tactic, but there’s some people who seem to adhere to it almost as a way of life. Some of them aren’t necessarily bad people on the main, either. I run into it a lot in the tech industry, and some of them are generally well-intending, progressive, good-hearted people who just tend to take things like formal definitions and rules more seriously than actual facts.

      • LeeEsq

        Isn’t he a Soviet émigré? How much of his life was spent in the USSR before coming to the United States? Many modern European immigrants tend not to have firm grasp on American race issues and what is offensive to Americans of color and why, especially if they immigrated when older. That isn’t a defense of Volokh but an observation.

        • medrawt

          Per Wikipedia (I know) he came here when he was 7. If we were looking for biographical reasons as to why Volokh might seem disconnected from these issues, I’d look at getting a computer science degree as a teenager and spending the vast majority of his life in the academy (from what I can tell, entirely at UCLA).

          • Origami Isopod

            spending the vast majority of his life in the academy

            I would correct this to “spending the vast majority of his life in the areas of academia with scorn for progressive values.” I’m sure UCLA’s professors of African-American studies, for example, have something to say about Volokh’s “skepticism.”

            • J. Otto Pohl

              No, I spent most of my career working in “non-progressive” academia and I am aware of black face and why it is considered offensive. Outside the US the social sciences and humanities are not so overwhelmingly dominated by leftists. In Europe, Asia, Africa, and the Middle East you find a lot of historians that are not self defined “progressives” and are considerably to the right of most of their American colleagues.

        • J. Otto Pohl

          I think he has been in the US long enough to know that Chunga Changa is not acceptable among civilized ie non-Soviet people.

          https://www.academia.edu/27802561/Is_there_a_Black_Eurasia_Ghanaian_and_other_Diasporic_African_Populations_in_the_USSR_in_Comparative_Perspective

        • That question has occurred to me too.

  • postmodulator

    What if you agree with the First Amendment/academic freedom arguments but strongly believe that idiocy should be grounds for revocation of tenure?

    • Origami Isopod

      You’d be decimating academia, literally. Unless a tenth is an optimistic number.

      • timb

        You’d certainly be getting rid of most of the writers at Volokh’s place, several of whom are just idiots

      • postmodulator

        You’d be decimating academia, literally.

        I’m completely fine with that. There are a lot of unemployed academics out there; I’d wager that many of them are not stupid, so we should be able to plug any gaps.

        • (((Malaclypse)))

          There’s no reason whatsoever it will be the stupid who get fired.

          • Origami Isopod

            This is the problem. Who was it who said that when your mind goes, they make you the dean?

            • Scott Lemieux

              This. I wish people who speculate about how eliminating tenure would be OK as long as the right people got fired would think a little bit about some of their past bosses.

              • ThrottleJockey

                Again, I don’t think Shurtz’s actions were in themselves legal harassment and I think they are therefore protected by the First Amendment and, like George Ciccariello-Maher’s witless and counterproductive tweets, by principles of academic freedom.

                1. She was racially offensive.
                2. She invited her students to her house.
                3. She had an obligation to not denigrate her students.
                4. This is 100% absolutely harassing.
                5. This is firable.

                Just because this happened outside of a classroom doesn’t mean it wasn’t harassing. You might as well argue that if I paw my co-worker at a off premises office party that it’s not sexual harassment. That’s patently wrong counselor.

                And of course it’s a firable offense. Harassment need not go on for years for it to be a firable offense. Just the same as I can cheat on just 1 expense report and still be fired.

                • jim, some guy in iowa

                  you missed the word “legal”

                • ThrottleJockey

                  Ummm, no, I don’t think it was legal. I also doubt the university adopted this stance because they thought too that it was legal.

                • Murc

                  You might as well argue that if I paw my co-worker at a off premises office party that it’s not sexual harassment.

                  That’s not a great analogy. An off-premises office party is still a work event. An off-premises private party is not. What you describe would in fact be sexual harassment (actually a form of sexual assault) but I would argue it shouldn’t be a firable offense absent conviction of same, because it happened out-of-work.

                • ThrottleJockey

                  I disagree. If I invited a co-worker to a private party and then pawed her while there it would be sexual harassment. Particularly if I invited her while we were both at work. Hasn’t anyone taken anti-harassment training?

                • I have taken anti-harassment training. A lot of harassing behaviors aren’t legal harassment unless they’re repeated. Let’s leave “pawing” out of this because touching someone’s privates without permission is flat-out illegal.

                  As I understand it, if you’re a Jew having lunch with a coworker and they mention their “new Jew accountant, a little shifty but you know they’re great with money”, that single action isn’t sufficient to be harassment. Now, it might get you shitcanned if you’re employed at will, but there isn’t a lawsuit in it.

                  But if you request they stop and they continue saying things like that, or if you bring it up to HR and they don’t intervene, that’s when the law is being broken.

                • solidcitizen

                  Stepped,

                  Harassment can be pervasive or severe. “Pawing” would be severe enough to be harassment based on one incident. The UO is saying that wearing blackface to a party that you invited your students, including minority students, to is severe enough to be harassment after one incident.

                • @solidcitizen: I understand that. I think it’s the kind of thing the university should be able to cite a bright-line rule on to override academic freedom concerns, though. Criminal harassment in Oregon, for instance, generally requires physical contact, fighting words, and/or threats of violence. (I’m not saying criminal harassment is the basis of the university’s actions, but it’s an example of the kind of clear policy that they should have.)

            • mikeSchilling

              Peter Cook, more or less:

              All in all I’d rather have been a judge than a miner. And what’s more, being a miner, as soon as you are too old and tired and sick and stupid to do the job properly, you have to go. Well, the very opposite applies with judges.

            • No Longer Middle Aged Man

              Who was it who said that when your mind goes, they make you the dean?

              The Provost, being ironic with the use of “they.”.

      • J. Otto Pohl

        Maybe 10% would remain. But, it could be less. ;-)

    • Murc

      What if you agree with the First Amendment/academic freedom arguments but strongly believe that idiocy should be grounds for revocation of tenure?

      And when “idiocy” is redefined (as it would be, nearly instantly) as “any action the university administrators do not approve of?”

      • postmodulator

        Yeah, I know, I know. It still rankles that somehow we’ve got an “intellectual class” that is often not terribly bright.

        As I’ve said in the past, this is largely a personal issue, because for years I had a job that meant I saw academics at their worst. I have spoken to more than one that I would consider functionally illiterate.

        • Captain Oblivious

          It’s not that they’re idiots, but that they have other defects of character or intellect which are often a mixed blessing, making them better able to stay committed to pursuing post-graduate degrees (especially in fields with limited employment prospects) but less able to interact appropriately with their fellow human beings or, in Volokh’s case, to see their own moral failings and hypocrisy.

      • Scott Lemieux

        And when “idiocy” is redefined (as it would be, nearly instantly) as “any action the university administrators do not approve of?”

        Also this.

        In addition, look, what the professor did here was really dumb. But you don’t define people by their dumbest moments. Smart people can do dumb things.

        • Captain Oblivious

          This also applies to those who think lying shouldn’t be protected by the First Amendment.

          The problem isn’t that there’s a lot of disagreement on what constitutes a “lie” or whether wearing blackface to a party where you invite your own students shows immensely poor judgment. The problem is that you have to set up a regulatory authority to police it, and when you do that, you create the potential for abuse of that power.

          • ThrottleJockey

            OK, lots stop sugar coating this horseshit and calling it a Mr. Goodbar. This woman was racist, full stop. She was racist in the “cool” variety, like the dude-bros that came up to me in college–all down with the hippity hop of course–and said, “Nigga please”, like they were black.

            Jesus Christ if you guys don’t get this…This is why blacks like me didn’t trust Clinton enough to vote for her. Because even though she says she’s down for the cause–now–there are any number of progressives out there who excuse racist bullshit when its done by 1 of their members. That is purely partisan.

            • ColBatGuano

              This is why blacks like me didn’t trust Clinton enough to vote for her.

              This isn’t why you didn’t vote for her and we all know it.

              • veleda_k

                He just can’t seem to help himself. Somehow, it all has to come back to how much he hates Hillary Clinton.

                • ThrottleJockey

                  Teachable moment. How do little things impact big things?

                  My perceptions of Hill are informed nearly as much by white progressives as they are informed by things that Hill herself has done. Once her ’08 campaign engaged in race baiting I began to see her as the type of white progressive who eagerly charges conservatives with racism but refuse to see racism in their own ranks. That type of person isn’t a champion of diversity, they’re a mere partisan.

                  Imagine how disappointed I’d be in voting for a President Clinton who said wearing blackface wasn’t racist; that it wasn’t harassment; that it was legal; and that we “shouldn’t define people by their dumbest moments.” I’d be sick at the thought of having voted for her. Based on her ’08 behavior though I wouldn’t be surprised to see her echo Scott’s comments. Blacks deserve better representation than that.

              • ThrottleJockey

                It’s the entirety of why I didn’t vote for her. I don’t vote for racists.

                • Hogan

                  Which at least is consistent with your general “one strike and you’re out” attitude.

            • Captain Oblivious

              Racist horseshit is protected 1A speech. Defending the right to say it != agreeing with it.

              I realize that’s a distinction you have trouble with, but try to sharpen your mental razor a little.

              • ThrottleJockey

                White man please.

                Racist horse shit is protected by the 1A true but 1A protection doesn’t give you the right to stand up in front of your college classroom and say “Nigger, nigger, nigger.”

                Nor does 1A protection give you the right you wear blackface in front of your students.

        • ThrottleJockey

          What the professor did here wasn’t merely dumb. It was categorically racist harassment. And it was legally so.

          This is what I was talking about last week when I said that progressives have a hard time calling out racism when it happens within their own ranks.

          Some progressives would prefer to say that only conservatives are racist and in so doing give the impression to blacks that racism is merely a partisan charge to be hurled against the other side and not something that progressives need take seriously themselves. The cynicism of blacks about these partisan progressives is amply justified.

          • Captain Oblivious

            Some progressives would prefer to say that only conservatives are racist

            Quote one saying that.

            Sure you’ll find racist progressives who deny their own racism, but nobody’s going around saying that racism is a purely conservative problem.

            • ThrottleJockey

              Scott’s contention that this behavior is merely dumb and not racist proves my point. His assertion that this behavior is legal and doesn’t constitute harassment doubles down on it.

              Do you think for 1 minute that he would extend this charity to Paul Ryan?

  • J. Otto Pohl

    I am pretty sure that everybody in the world except the “progressive” Dutch (who continue to practice the extremely vile tradition of “Zwarte Piet”) knows black face is offensive to most people of African descent.

    • Warren Terra

      You’d think so, but apparently Volokh hasn’t noticed.

    • LeeEsq

      Several years ago Harry Connick, Jr. ended up delivering a lecture on why blackface is bad to a bunch of Australians at a talent contest he was a judge at.

      • Oh yeah, the “Jackson Jive”. And that was a straight up minstrel routine, not just makeup. Incredible.

        • Warren Terra

          Of course, “straight-up minstrel routines” were popular in the Commonwealth until fairly recently. See The Black And White Minstrel Show, which was exactly what it sounds like and ran on BBC TV from 1956 to 1978 to huge audiences (in the twenty million range – a massive hit in the Britain of the era). An attempt to spin off a version free of blackface found no audience waiting for it.

          And blackface continues to be practiced in some variants of British Morris (folk) Dancing.

    • pianomover

      I’m white 6’8″ tall one Halloween I went as Sammy Davis Jr. I wore a blue sharkskin suit with a chain with the Star of David hanging from it. I carried a cocktail glass in one hand and made a peace sign with the other and punctuated my speech with baby, peace man or sang The Candyman song. I didn’t wear blackface and I didn’t wear an Afro wig (Sammy never had an Afro). People would ask who are you dressed as?
      Sammy Davis Jr. baby.

      • (Sammy never had an Afro)

        This reminds me of the time that one of Paula Deen’s sons dressed up as “Ricky Ricardo”.

        • Murc

          … oh dear god.

          The worst part of that is is that the horrible brownface was actually unnecessary. When accompanied by a woman dressed as Lucy, that set of PJ’s, or an appropriate suit, would instantly lead to the conclusion “oh, that guy must be Ricky” without anything else being required.

          • Not only is the brownface unnecessary, but it’s inaccurate, and the thing that really is visually distinctive about Ricardo (his hair) is completely missing. That could as easily be a Carlos Mencia costume or a Barack Obama costume as a Ricky Ricardo costume, frankly.

        • Origami Isopod

          Apple, tree, fall, etc.

      • pianomover

        I also spent a good part of my youth singing to and imagining myself as a member of the Temptaions.
        So there.

    • Solar System Wolf

      My daughter really liked the character of Patty from the new Ghostbusters movie, but at 13 years old, she knew it would be wrong to dress up as her for Halloween because she’d need a wig and blackface to do it. Honestly, if a 13-year-old gets it I don’t see why an adult doesn’t.

    • ThrottleJockey

      Lots of places outside the US practice blackface. Australia and even Mexico for instance.

      • And then there’s Japan. Confusing the issue is ganguro/manba/yamanba, which can resemble blackface, but isn’t necessarily meant to be (I’d link, but LGM eats posts with more than one link).

    • Captain Oblivious

      No, J, a lot of white people really are that stupid and out-of-touch. Trust me on this.

    • Actually, this is something that has finally been changing in the past three-four years. Lots of resistance against losing the Zwarte Piet tradition, but a lot of cities have cut them from their sinterklaas parades and the major broadcasters also stopped using them.

  • timb

    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.”

    Shorter Eugene: 20 white guys wearing a Klan robes to a NAACP meeting is not harassment…

    • David Hunt

      Stop translating his double-talk into its plain meaning! Calling out racism makes you the real racist!

      • timb

        Great, now I’m harassing Eugene…luckily he will defend my right to call him a racist.

        • efgoldman

          luckily he will defend my right to call him a racist

          Or maybe not.
          Oxen=>gored.

        • ThrottleJockey

          Unless I’m badly misreading Scott he’s making the same damn argument.

          • timb

            You are. Scott is saying Volokh is drawing the line at the wrong place. That’s sort of his thesis, along with the University is going too far

    • Just_Dropping_By

      I’m fine with Shurtz being fired for this, but you’re an intellectually dishonest hack if you don’t see some rather steep distinctions between someone wearing a costume at a private event they are hosting in their home and them wearing a costume when showing up (presumably uninvited) at somebody else’s event.

      • ThrottleJockey

        If you’ve invited students to your house there is no difference.

        If the students crash your party then you can plead your privacy rights which is fine.

  • timb

    Further this line is harassing me:

    these posts by Prof. Josh Blackman, Hans Bader, and Prof. Jonathan Turley.

    With the possible exception of Blackman, the other two are 100% hacks. Blackman is just a hack most of the time, but Turley is a poorly reasoning conservative answer to Jeff Toobin, while Bader is an embarrassment to the study of Law

    • timb

      My fault for getting out of the boat.

    • Scott Lemieux

      You didn’t find Turley’s embrace of ACA trooferism persuasive? But it proves that Both Sides Agreed with Adler!

    • Joe_JP

      Josh Blackmun has a special distaste for Justice Stevens, including multiple posts arguing he didn’t really “retire” so his public remarks are unethical.

  • cpinva

    “Nonetheless, it is a fact (though one that Shurtz apparently didn’t know) that many people do, rightly or wrongly, view this as offensive.”

    how old is this woman, and was she not educated in the US? anyone passed the age of ten, who has taken their first history class, in the US, is at least passingly familiar with the minstrel shows. white actors in blackface has been considered verboten for a long time, for her to claim ignorance of this raises questions about her qualifications as an instructor, just on a basic level.

    • Origami Isopod

      She got her B.A. in 1970. So, yeah, no excuse.

    • J. Otto Pohl

      She might be one of those “prorgessive” Dutch people that still think Zwarte Piet is acceptable.

      • Just_Dropping_By

        Repeatedly posting this makes me think of the Austin Powers joke:

        “There’s only two things I hate in this world. People who are intolerant of other people’s cultures and the Dutch.”

        • humanoid.panda

          She might be one of those “prorgessive” Dutch people that still think Zwarte Piet is acceptable.

          And since many Americans are of Dutch extraction, and many of them are progressives, all progressives are therefore racist. QED.

          • J. Otto Pohl

            No but Americans that praise the Dutch for being so “progressive” and ignore things like Zwarte Piet and the 1945-1948 massacres in Indonesia are presenting a very distorted picture of reality.

            • CP Norris

              It isn’t that hard to understand why someone might praise their healthcare or transit or gay tolerance while simultaneously disagreeing with some racist practices. New York City is awesome but also has a racist police force.

              • J. Otto Pohl

                But, white US “progressives” don’t ever disagree with the racist practices of the Dutch. They at best ignore them. Often they deny them. Sometimes they try and justify them. But, they never disagree with them.

                • Warren Terra

                  1) This is of course completely false; to the extent they’re aware of them US progressives are perfectly happy to denounce the Islamophobic Dutch right, most prominently Geert Wilders.

                  2) That said, most US progressives don’t pay a lot of attention to the Netherlands, a country of fewer people than New York State who speak an obscure dialect (and, of course, excellent English) and whose history later than ~1700 most people would find it difficult to describe.

                • ColBatGuano

                  Your belief that white US progressives (nice scare quotes by the way) are aware of these racist practices is ridiculous.

        • J. Otto Pohl

          The Dutch reputation is completely unearned. Not only do they still publically practice black face but, their record on colonialism (including fairly recent stuff like the post-WW II massacres in Indonesia) and slavery is one of the worst in the world during the last three centuries.

          • efgoldman

            And this has to do with a professor on the West Coast of the US, how?

            • J. Otto Pohl

              The Dutch still publically practice black face around Christmas.

              • efgoldman

                The Dutch still publically practice black face around Christmas.

                That’s not an answer to anything I asked. Most Dutch immigrants to the US came in the 17th century.

                • tsam

                  Nah, you don’t understand, man. It’s like little Dutchistan out here. Dutchland? WHAT COUNTRY IS IT, REALLY?

          • Ronan

            I think a lot of people admire aspects of the north European welfare states, I’d be surprised if anyone thought the Dutch (or another else) were saints.
            Tangentially, have you read anything by Svetlana Alexievich? (she writes about post Soviet Russia etc) Starting into her new book now and it seems quite good, though curious for a regional experts view..

            Eta book is called “second hand time”

            • J. Otto Pohl

              Much of Dutch wealth is based on slavery and colonial exploitatation. They did not even admit to their crimes in Indonesia during the late 1940s after the Nuremburg Trials outlawed such conduct until 2013. This special topic issue of the Journal of Genocide Research deals with both the Dutch mass murders during colonial rule and the long standing denial of these crimes by the Dutch.

              http://www.hsozkult.de/journal/id/zeitschriftenausgaben-7135

            • Cassiodorus

              I’ve heard good things, but Dreher has a boner for it, so the jury is still out for me. Looking forward to seeing if anyone has a take.

              • Ronan

                It definitely seems a book dreher would like, a post God civilisation collapses into cultural decadence (though I guess we can’t blame the author for attracting a dodgy following)

          • witlesschum

            Most of the liberal praise for Dutch societal attitudes I’ve read has been specifically about Dutch parents’ mellow attitudes toward teenage sexuality. Or about weed.

  • Joe_JP

    Volokh can be worth reading sometimes but he takes these things to 11. His posts on harassment in high school, e.g., simply refused to address the real problems of harassment there. Instead, he focused on some cases where the rules in place could be applied too broadly or could be too vague. Suggestions on how to balance addressing needs of students and his 1A concerns not really his concern. Cf. Emily Bazelon who shows true nuance.

    I understand those who simply find him not worthwhile. His endorsement of Ted Cruz, for instance.

    • Origami Isopod

      Cf. Emily Bazelon who shows true nuance.

      Except when she’s slut-shaming teenage suicide victims because she’s BFFs with the parents of one of their tormentors.

      • I read Bazelon’s pieces on the case, which was heavily covered in the Boston area, including the part about her supposedly having dated another girl’s boyfriend, which apparently turned the other local girls against her and in part led the adults at the school to support them against her. I read Bazelon as being pretty understanding of Prince, as an uprooted immigrant from a different culture who misread various social signals, and very, very hard on almost all the adults in the case, most of whom who did engage in slut shaming. I remember no slut shaming on Bazelon’s part. I don’t remember Bazelon saying anything that wasn’t in the Boston papers already and wasn’t apparently intended to induce readers to understand the victim better.

        I can see how the victim’s family may have felt they’d prefer a Bazelon who acted as an advocate for the victim’s reputation above all else, and that the difference in exposure between a city newspaper and a widely read web publication created a need for them to speak out against the latter, but as cases of supposed slut shaming go, it’s hard to see this as one.

      • Missed edit window but it is also very interesting that neither the piece linked here (by someone writing on the same topic as Bazelon elsewhere) nor the published piece he links, mention the very strong evidence that the girls being prosecuted for hounding Phoebe Prince to her death engaged in documented non-electronic behaviors as well as “mere” Internet speech.

  • LeeEsq

    My big issue with hate speech and anti-harassment law is how to define the difference between hate speech and vigorous outside groups criticism in non-obvious cases. As a Jew, I’m a lot quicker to see anti-Semitism in criticism of Israel, especially if traditional anti-Semitic troops get invoked like Jews as “greedy, hook-noised manipulators” get used but others would just argue that it is criticism of Israel and not anti-Semitic. You can replace Jews with any minority community or women and have the same issues at work. If hate speech is going to be a thing their needs to be a way to distinguish between hate speech and vigorous outside group criticism.

    My general feeling that is usually better to air on the side of allowing speech even if it is really vile or is close to the line than prohibit unless their is actual physical harm or other conduct that might raise to the level of assault. Than you punish the perpetrator for assault or battery rather than hate speech.

    • efgoldman

      My general feeling that is usually better to air on the side of allowing speech even if it is really vile or is close to the line

      Are you old enough to remember the KKK march in Skokie, IL? I remember how shocked people were that the ACLU took the case and supported the Klan. In retrospect, it was exactly the right position, and per the linked article, led to a really positive outcome, eventually.

      • LeeEsq

        Skokie was three years before my conception.

        • ThrottleJockey

          There’s no question that free speech applies to marches. But inside if workplaces and schools free speech rights are tempered by the Civil Rights Act.

          I think my free speech views make me a bit of a libertarian here but even I respect the limits inside of workplaces and classrooms. Your free speech rights don’t give you the right to malign a racial group. Not that opposing Zionism is anri- Semitic, same as opposing affirmative action isn’t racist.

      • Murc

        I can’t find the thread now, but five or so years ago we had a European theocrat posting in threads here about how Islam needed to be outlawed (and those shifty Protestants needed a good eye kept on’em) and he thought that “You guys in the states wouldn’t let Nazi’s operate openly and disseminate their ideas, would you? So why should Muslims be allowed to do so?” was a game-ending argument.

        He was utterly gobsmacked when multiple people pointed out that, yes, we do in fact let Nazi’s operate openly here, with links to the Skokie march, and have major civic organizations dedicated to defending even the free speech rights of the most abhorrent among us. He’d honestly had no idea, and to give him a very small amount of credit did admit “well, damn, if you really do let anyone say anything they want then of course you have to allow Muslims to as well.”

        This and other incidents over the years have left me with the impression that many people in other western democracies actually do not have a clear idea of just how expansive the First Amendment here in the States is. Germans especially seem baffled by it, I’ve found; I have two German friends who spent a long time saying “Surely saying X isn’t allowed?” or “But surely you can just outlaw saying Y, yes?” before they grasped that, no, we really can’t.

        • J. Otto Pohl

          You greatly overstate the amount of freedom in the US defacto. Sure there are no specific laws like in Germany that outlaw specific types of speech on pain of incarceration. But, there are plenty of sanctions that can be applied by institutions including public ones for “incorrect” speech. If there were not we wouldn’t be talking about this case or Professor “white genocide”, or probably the most salient case Salaita.

          • efgoldman

            Sure there are no specific laws like in Germany that outlaw specific types of speech on pain of incarceration.

            The German laws are, of course, in response to a specific set of events at a specific, very recent, time in history.

        • ThrottleJockey

          Few countries (maybe none) have free speech laws as expansive as ours.

          • J. Otto Pohl

            True, the only one I have lived in that is on par is Ghana. The UK, Kyrgyzstan, and Kurdistan all have more dejure restrictions.

        • efgoldman

          many people in other western democracies actually do not have a clear idea of just how expansive the First Amendment here in the States is.

          I’m not a historian, political scientist, or academic, but I think the people who say that if the first amendment, with it’s same wording, were introduced today, it wouldn’t stand a snowball’s chance of passage, are right.

          • tsam

            Certainly not the establishment of a religion clause–no doubt about that.

  • Fozzz

    Volokh and his ilk are trash. Anyone remember the apologetic on Volokh’s blog for Reagan’s race baiting, and particularly, his use of the term “young buck”?

    I’m not sure what to make of this. Except in the context of Reagan’s remarks, I’ve never heard of [or at least don’t recall hearing of] “young buck” being used as a racial term, and I’ve read lots of racist drivel from the South in my historical research. Nordheimer doesn’t cite any source for the claim that “young buck” meant “large black man” in the South.

    He was getting trashed so hard in the comments that he actually had to update his post:

    UPDATE: Following some leads from the comments, and having looked at the Times’ archives, I think it’s fair to say that (a) “young buck” was used pejoratively in the South, especially earlier in the century, to refer to young black men; and (b) this was not sufficiently widely known at the time outside the South that it brought the phrase into general ill-repute, even to the extent that a northern editor would notice when a reporter referred to a black athlete as a “young buck.” So did Reagan know about the southern usage and either purposely or unconsciously modify his standard talk to appeal to racism, or was he, a Midwesterner and Californian, using it innocently to refer to a vigorous young man as he claimed, as the Times itself did?

    http://volokh.com/2014/01/08/revisiting-krugman-reagan-race-part-ii/

    • Gator90

      Reagan likewise had no idea that championing “states’ rights” would have any particular resonance in Neshoba County, Mississippi.

      • Snarki, child of Loki

        Reagan’s campaign bus was heading for Philadelphia, but Ronnie had a “senior moment” and got off at the wrong one, amirite?

    • Origami Isopod

      Ah, I see Mr. Nimpotent busy at work in comments, obfuscating.

      • timb

        As always. What a tool

  • Sebastian_h

    “He would seem to be implying, for example, that no amount of sexual interest shown by a faculty member towards a student could constitute harassment barring something like a direct quid pro quo threat to lower grades if sexual favors are not granted or something similar, and at public universities hitting on students is not conduct but speech protected by the First Amendment barring a direct threat.”

    You seem to be misreading the part that you quote. He isn’t implying any such thing (at least not in the part you quote, I haven’t read everything he’s written everywhere).

    He wrote:

    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).

    He is distinguishing between targeted, unwanted one-to-one speech (with the implication that they can be actual harassment) and other cases like the Shurtz case. Your sexual harassment case would be a targeted, unwanted one-to-one situation.

  • Dudefella

    Isn’t this just a Garcetti issue? It’s been a while since I’ve read the case. My memory, though, is that it stands for this: Public employees enjoy First Amendment protection for their speech as a citizen, but not for speech made in the course of their employment.

    So: I’m a lawyer for the government. If I post an anti-Trump sign in the window of my house, that’s fair game. But if I insert an anti-Trump screed in a brief I file on my employer’s behalf, under Garcetti, they can punish me for doing so.

    Here, it seems to me that a professor, working for a public university, who wears blackface to a party to which she also invites students (work parties are generally considered part of work, even if they take place off site and after normal business hours), is engaging in work-related expressive conduct for which she can be professionally sanctioned under Garcetti. So it’s not that the First Amendment doesn’t protect the conduct — it does — it’s that the First Amendment doesn’t apply in this circumstance, where the university is regulating the conduct of its employees as employees. The same with any other harassing conduct.

    I admit that this isn’t my field of law; am I totally missing the boat here?

    edit: whether the professor’s conduct here was harassment, and whether the university’s sanction was reasonable, are different issues. I’m just talking about the First Amendment question.

    • J. Otto Pohl

      I am pretty sure that due to the concept of Academic Freedom that Garcetti does not apply here. The issue is not whether the speech was work related or not. But, rather did it harass current students at the university.

    • Snarki, child of Loki

      I was unaware that throwing parties off-campus with students invited was part of a faculty member’s official responsibilities. Sounds like a sweet gig.

      Which department? AFAF.

      • Dudefella

        1) Garcetti, by its own terms, doesn’t apply to “speech related to scholarship or teaching.” 545 U.S. 410, 425; see also Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014). But this wasn’t speech “related to scholarship or teaching” — unless you take at face value the professor’s assertion that her blackface had an understandable pedagogical message.

        2) In assessing whether conduct is part of the workplace, the issue isn’t whether the conduct is part of the employee’s official responsibilities. Drankin’ isn’t part of my job description, but if I go to a bar with my co-workers tonight and get handsy with one of them, guess what? That’s actionable workplace harassment.

        • Snarki, child of Loki

          “Drankin’ isn’t part of my job description”

          So, not the Philosophy Department, then?

        • solidcitizen

          Point number 2 is a good one. I think everyone agrees that if Shurtz had gotten handsy with a student, she’d be in big trouble, no doubt. That’s why I think her defenders are really arguing that wearing blackface with “good intentions” isn’t so bad.

  • endaround

    You have to give it to libertarians. They are willing to believe that you can give up any right when you sign a contract including first amendment rights, except for the rights to harass underlings or undertake racist acts in which case they become first amendment absolutists and no contract can take those rights away.

    • timb

      I so love this point. I stole it

  • Dilan Esper

    Title VII is constitutional. But you have to take the “severe or pervasive” requirement, and the requirement of actual interference with the educational/employment environment (i.e., the harassment has to actually interfere with the victim’s ability to do her job / get her education, not just cause discomfort) seriously in order to protect free speech.

    The first work I ever did for my local ACLU was on a case involving a firefighter who wanted to read Playboy at work. This was the position we came to. I still think it is correct as an interpretation of the First Amendment.

    • solidcitizen

      The UO operates on a very liberal interpretation of “interference with an educational opportunity.” Ask a student to leave class – you’ve interfered with an educational opportunity. You can even be found guilty of interfering with an educational opportunity even if no interference took place or was claimed. If the Office of Affirmative Action concludes that a reasonable person could have had their educational opportunity interfered with, bam! Title VII or XI violation and discriminatory harassment.

  • Having read the piece, I notice that it contains a complaint that “harassment” has acquired a legal meaning different from the one in ordinary use. This is one of Volokh’s more annoying tics, pretending that it’s a valid argument against some practice of his own profession (when it suits him politically) to show how a layperson would think it’s silly.

    • Sebastian_h

      He isn’t arguing against relatively recent legal definitions of harassment. He is arguing against extending those definitions further (as far as the school wants to).

      • That distinction is possibly too subtle for an article in the Washington Post. His intention is probably to persuade lay readers to take his own position in a debate taking place within the legal profession. Though possibly he actually overestimates (or maybe I underestimate) the ability of most of his readers (certainly me) to engage with those debates.

  • Morbo

    Are we just going to gloss over the real issue here? WTF has Oregon done to that basketball court?

    • N__B

      The floor banks irregularly down to a lowered center court. Make dribbling more interesting.

    • tsam

      It’s a memorial to the trees they hacked down to make the floor, see?

      • Dilan Esper

        I always thought it looked like they spilled paint on the floor. In actuality it is a tribute to the Tall Firs who won the 1939 NCAA championship.

        Big win last night for the Ducks on that floor.

        • tsam

          DUCKS DON’T LIVE IN TREES, THO

          • Snarki, child of Loki

            #NotAllDucks

        • Warren Terra

          the Tall Firs who won the 1939 NCAA championship.

          I know people said that in the pre-integration era Basketball was a slow-moving game won by woodenly stiff players of great height, but that seems like taking it too far.

          • Dilan Esper

            It’s worth noting that UCLA was already fielding integrated teams by that point and was in Oregon’s conference, so the Ducks at least had to play against some good black players unlike many other teams of the era.

            (Come to think of it, the Bruins probably had Jackie Robinson on the basketball team that year.)

            • Bill Murray

              (Come to think of it, the Bruins probably had Jackie Robinson on the basketball team that year.)

              My guess is not, as Robinson was, I believe, still at Pasadena JC in the spring of 1939, which I believe is when Oregon won the championship

      • gmoot

        The rival Beavers did it.

    • Warren Terra

      I find curious the two banks of spectators unanimously attired in vivid yellow, a sartorial option not otherwise popular in the crowd.

      • Dilan Esper

        Television and student sections are both big deals in college hoops.

      • solidcitizen

        That’s the “Pit Crew” a.k.a. the student section. The name made a lot more sense when we played in our old arena, affectionately dubbed “The Pit.”

  • solidcitizen

    To date, there is no public knowledge of the discipline the UO will give Shurtz, if any. I suspect that she will not be fired, but will receive either a written reprimand or a short unpaid suspension. Most people are treating the public condemnation of her actions by the President and Provost and her paid administrative leave as if they were punishment, though.

    The investigatory report very much concluded that she violated the university’s non-discrimination policy and, further, rose to the level of discriminatory harassment because her actions were severe enough that they interfered with the educational opportunities of students – both in that hours of class time were lost in discussion about the incident and in that some African-American students expressed that they did not want to take classes with her.

    She was holding a private party, but she invited the students via the class listserv. The students reported that they felt compelled to go because not showing up would be noticed and grades were still out. She also invited several colleagues and almost all of her guests were university/work affiliated.

    What I think Volokh and others are really concluding is that dressing up in blackface is not so bad. Not bad enough to outweigh her First Amendment rights. The faculty at the UO are pretty torn, with many speaking out against blackface, thereby lending support to the calls for discipline, and many, many more (almost all white) crying academic freedom. The public discourse in Eugene has all been in defense of the professor, with the most common sentiment being that no one is really offended by blackface and this is PCism run amok.

    • Sebastian_h

      The argument isn’t that it isn’t so bad. The argument is that even really bad things shouldn’t get you fired. This is essentially the same case as the tweet about white genocide. Both are objectively offensive. Both are stupid and tone deaf. Both should be protected.

      • solidcitizen

        Right. She should not be fired. But “protected” implies “not punishable.”

      • Hogan

        But many people find whites putting on makeup to look black to be offensive. I’m skeptical about the soundness of this view

        Nonetheless, it is a fact (though one that Shurtz apparently didn’t know) that many people do, rightly or wrongly, view this as offensive.

        Volokh at least is arguing that it isn’t so bad–either people are pretending to be offended when they aren’t really, or they are offended but they shouldn’t be because blackface isn’t, by some presumably objective standard that he doesn’t spell out, actually offensive.

        • either people are pretending to be offended when they aren’t really

          a.k.a. “virtue signalling”!

          • Sebastian_h

            Part of the problem is that the students don’t appear to have been as offended as 3rd parties who heard about it.

            • Warren Terra

              Really? Her students didn’t go on record saying their professor did a dumbass insensitive thing that at a glance any observer, including yourself, would immediately recognize would require considerable and perhaps implausible explanation to distinguish from crude racism? Will wonders never cease?

              I mean there are a million explanations ranging from the innocent (they knew her as a person and didn’t suspect she’d decided to revise the worst aspects of cakewalk-era blackface) to the malign (students wanting grades and perhaps even recommendations from her might be disinclined to attack her reputation, even if promised confidentiality). None of those explanations change the fact that she dressed up in blackface, which is pretty much automatically an offensive and insensitive act.

              I don’t understand why so many people on your side, you apparently included, are twisting themselves into pretzels not just to demand she escape dire consequences, which is pretty much the consensus here as well, but also that her actions must be seen as harmless.

              I mean, FFS: your immediately upthread comment is to say that “the argument isn’t that is isn’t so bad”, and here you are building towards that selfsame argument.

      • Warren Terra

        The argument isn’t that it isn’t so bad.

        I give you one Eugene Volokh:

        many people find whites putting on makeup to look black to be offensive. I’m skeptical about the soundness of this view .. 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.

        I suppose there must be some people somewhere arguing there’s a need for severe punishment that overrides principles of free speech and of academic freedom, but not many such people and not here. However, despite your assertion, there genuinely are people insisting blackface is harmless and critics should get over themselves – and these people aren’t fringe figures. I don’t know why you’d pretend otherwise.

        ETA pipped by Hogan I see.

        • efgoldman

          However, despite your assertion, there genuinely are people insisting blackface is harmless and critics should get over themselves – and these people aren’t fringe figures.

          My experience has been, that it’s never a good idea for a third party to decide whether someone who was offended should have been offended.
          That’s the land of “Aww, s/he was just joking. Be a good sport.”

          • Hogan

            many people find Amy Adams attractive. I’m skeptical about the soundness of this view

            I mean, what can you say?

          • Patick Spens

            Wait seriously? So when so when conservative Christians are offended by gay or trans people in the media you don’t have an opinion of whether they should have been?

            • Hogan

              On whether they’re offended? No. I’ll take their word on that. The important question is what we should do about that.

              • Patick Spens

                Right, but efgoodman was specifically punting on whether they should have been offended, not whether they were.

                • Ronan

                  I agree you shouldn’t always take someone claiming offence at face value, which is stupid.
                  Glancing through the linked report, though, it seems it was primarily staff (not students) who pushed for her to be punished. schultz and the students seemed to resolve it among themselves by email. Her colleagues were the overreacters

        • Sebastian_h

          And the argument remains that the question of how bad the conduct is, is mostly irrelevant to the question of whether her job should take action against her for her outside-of-work conduct. (Just as the question of offensiveness for the “genocide for whites” quip is beside the point).

          • Warren Terra

            For the nth time: no-one or almost no-one here is arguing that she should face more than an awkward talk with the dean and some cold shoulders. We are however saying that we can’t understand why Volokh feels the need to claim blackface shouldn’t be seen as offensive. It’s offensive, she was offensive, people have hopefully learned a bit more about not celebrating outdated forms of racial abuse, that’s pretty much the end of it. Except for Volokh, who apparently is fine with blackface, and presumably also with people dressing up like a caricature in Der Sturmer or as a cigar-store Indian, and now you, who deny he’s doing that (and laughably join Volokh by saying the students refused to rat out their professor)

  • joejoejoe

    If a teaching assistant showed up to the same party in blackface would their appointment be renewed?

    • Breadbaker

      We don’t have to ask whether an applicant for a job showed up at the same party in blackface would stand a chance in hell of being hired.

      • Patick Spens

        It’s not really a relevant question though is it?

        • Warren Terra

          It’s precisely the question. I’m sure she’s a lovely person, I have no reason to disbelieve her claim that her intent was to portray the title of an innocuous, even uplifting book. And she’s getting a huge amount of support and benefit-of-the-doubt because her colleagues have known her for many years and because her students know her moderately well, hopefully like her, and may not wish to antagonize her or her friends.

          But: blackface is prima facie offensive. It is inescapably reminiscent of minstrelsy however lovely the person, however innocent their desired effect. Even if the students attending the party knew her too well to realize she was doing something appalling – what about the partners they brought along? The neighbors, or passersby?

          It’s a good thing that she gets all these protections from her academic status, from her web of friends and colleagues, even from her students. It’s nice that she will survive this episode wiser and unharmed. But don’t fool yourself: she did something dumb and insensitive that would have irreparably tarnished a less-established reputation, as BreadBaker suggests. Why take the risk of hiring someone who by first glance is the sort that might make a bunch of ethnic jokes out to dinner with a client?

  • rmgosselin

    I don’t know anything about the legal precedents of a case like this, but it seems to me that the problem hinges on the word “offended,” which is misleading. A better word would be “threatened.” Volokh links to Blackman who links to “Berger v. Battaglia,” about a Baltimore police officer who liked to do musical numbers in blackface back in 1985. Blackman approvingly quotes the Fourth Circuit (caps lock added):

    “An appropriate Department response, perhaps the only one, wholly consistent with the first amendment, would have been instead to say to those OFFENDED by Berger’s speech that their right to protest that speech by all peaceable means would be as stringently safeguarded by the Department as would be Berger’s right to engage in it. We have no illusions that this would have been a satisfactory response, nor that it…may not have led to some of the very disruption of operations and resources that the Department feared. But it would not only have been the most sound response constitutionally, it would have been an eminently practical one for any of those OFFENDED by Berger’s speech who were at least willing to consider the wider implications of the principle for which they at least implicitly contended: that OFFENSIVE speech may properly be curbed by exerting this form of leverage upon public employers.”

    No word from the court on what “all peaceable means” meant–Blocking sidewalks? Blocking traffic? Taking a knee?–but any assurance that community protest would be “stringently safeguarded” by the Police Department seems dubious in the face of recent history. The court itself even said:

    “These complaints [against Berger] were a matter of serious concern to the Department, which had been engaged since the mid-to late-1960’s in what Deputy Commissioner Bishop L. Robinson described as a “comprehensive, integrated community approach” to improving its previously strained relations with the black citizens of Baltimore.”

    In short, the use of “offended” implied an emotional response only, and assumed a power parity that did not, and does not, exist.

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