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.