Halloween costumes, political correctness, law, privacy, and the Niggardly Principles—this one has it all.
Last Halloween, University of Oregon law professor Nancy Shurtz dressed as Dr. Damon Tweedy, the author of Black Men In A White Coat , as an homage to the African American physician and author. She did this at a Halloween party in her own home. Nobody at the party appeared to misunderstand the gesture or the intent of the costume, in part because she could explain it on the spot, and because they knew that Shurtz was no racist. Shurtz had also told the students who were invited that she would be “going as a popular book title,” hence the blackface, Afro wig, white coat, and stethoscope.The university report on the episode 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 as always happens now because there is no such thing as a reasonable expectation of privacy even in one’s own home, reports of Shurtz in costume and make-up got out into the campus at large, and inflamed the predictable outrage. The university launched an investigation that culminated in a critical report prepared by an attorney and the university’s Office of Affirmative Action and Equal Opportunity. Shurtz issued an apology—for her private conduct within her own home that was pounced upon by Political Correctness Furies, since she appears to be one herself-–on November 1. Some of her colleagues on the faculty and many students demanded that she resign, and she may have to yet. Shurtz has been censored and suspended, and is now on paid leave. It being claimed that her wearing the costume–within her own home as a gesture that all agreed was intended as benign and that nobody at the party either objected to or failed to understand— created “a hostile environment” at the school. This is apparently because
“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.”
The report, meanwhile, concludes that the costume constituted “harassment,” and that her intentions are irrelevant.
“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.”
1. Professor Volokh is unquestionable right on the law, as he meticulously documents. This is a state institution, and thus its treatment of Shurtz involves government action. The list of court decisions cases concluding that conduct like the professor’s cannot be punished is substantial: Jonathan Turley lists a few here.
2. Thus it appears that the university is just intentionally ignoring the law in order to cater to a campus political correctness lynch mob. Professor Volokh points out the internal hypocrisy in the university report:
“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.”
3. Even though the University’s conduct will not stand up in court (if it gets there), it effectively chills free speech on and off campus, intimidates and indoctrinates. That’s the objective, and subsequent lawsuits and appeals, even if they successfully induce a court to reprimand the school, the mission has been accomplished. This most progressive of institutions is intentionally using its power to declare what kind of speech is “pernicious, false, and in any other way despicable, detestable, offensive or ‘just plain wrong.’” That’s nascent totalitarianism, and THAT’s just plain wrong—unethical as the sun is bright.
4. One of the two Presidential candidates, and only one of them, would unequivocally oppose the University of Oregon’s position here. (And would also be called racist for doing so.) Guess which.
5. Part of this controversy is the fanatic, unreasonable and illogical position that making up a white person to appear black is per se an act of racism or racial sensitivity. Ethics Alarms has covered this issue in many ways and in many contexts. A brief summary: if the use of dark make-up is not intended to ridicule African Americans and has a legitimate dramatic, comic or satirical purpose, it is ethical, and objections to it fall under the Ethics Alarms First Niggardly Principle:
“No one should be criticized or penalized because someone takes racial, ethnic, religious or other offense at their conduct or speech due to the ignorance, bias or misunderstanding by the offended party.”
6. Does the Second Niggardly Principle apply, though?
“When an individual or group can accomplish its legitimate objectives without engaging in speech or conduct that will offend individuals whose basis for the supposed offense is emotional, mistaken or ignorant, but is not malicious and is based on well-established impulses of human nature, it is unethical to intentionally engage in such speech or conduct.”
I’m not so sure. The professor had reason to believe that after making her intentions clear, and engaging in her political statement in favor of the book in her own home, she reasonably assumed that nobody would be offended. Considering where she works, this was naive at best.
7. The Third Niggardly Principle seems to control here, or should:
“When, however, suppressing speech and conduct based on an individual’s or a group’s sincere claim that such speech or conduct is offensive, however understandable and reasonable this claim may be, creates or threatens to create a powerful precedent that will undermine freedom of speech, expression or political opinion elsewhere, calls to suppress the speech or conduct must be opposed and rejected.”
8. Finally, there has been a sense that Professor Shurtz has been too quick to issue mea cuplas when she did nothing wrong, and when she is being used as a means to restrict free speech. She has an obligation to stand up for everyone’s rights, when her own conduct has led to them being placed in jeopardy. Now it looks like she is going to fight.