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.
Writes First Amendment expert Prof. Eugene Volokh:
“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.”
Observations:
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.
Good.
Ethics Alarms 
“An homage”? She made no attempt to look like either the author of the book (it is a memoir), or even the front cover of the cover of the book. Instead she smeared herself in blackface and an Afro, and basically looked just like any other stereotypical blackface depiction, rather than a specific person. As is her right. But as you say, there is a difference between legality and ethics.
As far as it being at home, if you say or do horribly racist things in your house, as long as all the other people who witnessed it agree not say anything about it, it becomes ethical? Can only a black person there have been offended by the blackface costume? No fellow white people also allowed to be outraged and speak up about it?
You’re muddying things.
1. Are you doubting that this unquestionably liberal prof was actually doing what she said she was doing, which was making a statement in support of the author and the book? Nobody else is, including the university. If you are suggesting that wearing the costume was really, really stupid, I’m with you all the way.
2. So you are in the camp that ever wearing make-up to appear as a African American is per se racist, whatever the reason or motivation? I hope not, because it isn’t. I guess I could check your comments on posts like the one about “Othello”…
3. The issue is NOT whether making a racially insensitive statement or engaging in a racist act in one’s home is unethical. The issue is whether it is a) First Amendment speech (it is) and b) whether the school can claim that private speech is campus harassment.
4. “Can only a black person there have been offended by the blackface costume? No fellow white people also allowed to be outraged and speak up about it?”
Sometimes you make me think you are just digging for things to posture about. What was in the post that possibly justified these questions?
1. Are you doubting that this unquestionably liberal prof was actually doing what she said she was doing, which was making a statement in support of the author and the book? Nobody else is, including the university. If you are suggesting that wearing the costume was really, really stupid, I’m with you all the way.
I am suggesting that it was both stupid, and something of a pretext to get dressed up in standard blackface. Like I pointed out, she made absolutely no attempt to look like the author in particular, and instead went with the normal blackface route. I get that being transgressive is fun, but yes, it was deeply stupid.
2. So you are in the camp that ever wearing make-up to appear as a African American is per se racist, whatever the reason or motivation? I hope not, because it isn’t. I guess I could check your comments on posts like the one about “Othello”…
No, not necessarily. I thought RDJ in Tropic Thunder was great satire. I thought Howell wasn’t very funny in Soul Man, but I don’t think it was racist. But it is a very fine line, because of the history behind blackface.
3. The issue is NOT whether making a racially insensitive statement or engaging in a racist act in one’s home is unethical. The issue is whether it is a) First Amendment speech (it is) and b) whether the school can claim that private speech is campus harassment.
Why isn’t that the issue? But anyway, I agree that she has a 1st Amendment right to dress that way. Whether her employer can fire her based on that or not depends on what her contract with the university might state regarding off campus actions. I don’t know the particulars, so I can’t say one way or the other.
“Can only a black person there have been offended by the blackface costume? No fellow white people also allowed to be outraged and speak up about it?”
Sometimes you make me think you are just digging for things to posture about. What was in the post that possibly justified these questions?
Just wondering whether students or faculty were invited to the party, and if so, whether it would had to been black students who made the complaint, or anyone who might have been offended.
1. Read the post again. Both students and faculty were invited.
2. She didn’t dress as the author. She dressed as the BOOK TITLE: “Black Men In A White Coat”; and announced that ahead of time.
3. The issue is defined by the terms used in the university report. Nothing about her contract was mentioned. To get around the First Amendment, the school would have to show that her conduct rendered her unable to teach. Instead, it just argued that the conduct was “harassment” (which is ridiculous under these facts) Created a hostile environment (impossible, given the context) and that the university has an inherent right to punish speech that is “despicable, detestable, offensive or ‘just plain wrong’”. There is no such right.
1. Read the post again. Both students and faculty were invited.
Stupid, stupid, stupid.
2. She didn’t dress as the author. She dressed as the BOOK TITLE: “Black Men In A White Coat”; and announced that ahead of time.
Announcing you are going to do something racist ahead of time does not magically render it “not racist.” The fact that she was trying to dress up as “black men in general”, rather than the author specifically, actually makes it worse, not better. An Afro and old-fashioned blackface, really? That’s what comes to her mind when she thinks about black people? She actually went old school with it.
. The issue is defined by the terms used in the university report. Nothing about her contract was mentioned. To get around the First Amendment, the school would have to show that her conduct rendered her unable to teach. Instead, it just argued that the conduct was “harassment” (which is ridiculous under these facts) Created a hostile environment (impossible, given the context) and that the university has an inherent right to punish speech that is “despicable, detestable, offensive or ‘just plain wrong’”. There is no such right.
I don’t know if black students in her class could ever trust her and her impartiality towards them again. If she is thinking about black people in such reductive terms and images, that is pretty hard to shake. She may have not meant to be intentionally racist, but in choosing such an inflammatory image that relies on such a painful history and racist imagery, she definitely crossed the line. I wonder how comfortable any students at that party would have felt in telling her how they felt, either at the party, or afterwards? Probably not very comfortable.
How is dressing like a black man automatically racist, if no offense is intended or perceived? So you DO believe that blackface is per se racist, regardless of intent or purpose! That position is pure ideological cant: there is nothing racist about dressing in black make up and a lap coat to portray that title, any more than dressing as a dead bird to portray “To Kill A Mockingbird” is a statement against ecology.
Nope. I don’t think dressing up as a specific black person is not necessarily racist, depending on how it’s done. Dressing up as generalized concept of a “black person” is pretty much always a bad idea, and very hard to avoid racist implications, especially when your concept of a “black person” is literal black makeup, white lips, and an Afro wig. Standard issue black face, in other words.
And why go there at all in the first place? If the theme was popular book title, isn’t there a single other book title, any one at all, that tickled her fancy? Picking this title was meant to be either provocative or perhaps something more sinister.
And as Deery pointed out, a true fan of the book would have done a better job on the costume.
Stipulated: it was weird. It was still in her own home, not aimed at or intended to be seen by anyone not there, not official action, not malicious, and Constitutionally protected. And, as I assume you know, that last sentence is so speculative as to be desperate.
I don’t think it’s speculative at all. My entire social circle is composed of people who are passionate about literature, arts, movies, and history. Cosplay is not just something for weirdos anymore. We (or friends) have hosted Roman mystery parties, Cthulu parties, Renaissance parties, etc. If a costume is involved, we put time and effort into them.
I don’t assume that most people do this, but someone who is hosting a themed costume party? I think the desperation is not on my end here Jack.
Ridiculous. It’s not speculative! Your speculation contradicts the exhaustive investigation by the university that has suspended her! It determined that she was genuinely trying to endorse the position of the book and the author. You and derry are worse than speculating, you’re just ignoring the evidence that undermines your argument. This wasn’t a “themed party”—everyone wasn’t dressed “like a book title”—this was just a bad costume, like the many, many lousy costumes I have seen at private parties for decades. Strangely, nobody lost their job for any of those.
Ridiculous. It’s not speculative! Your speculation contradicts the exhaustive investigation by the university that has suspended her! It determined that she was genuinely trying to endorse the position of the book and the author. You and deery are worse than speculating, you’re just ignoring the evidence that undermines your argument. This wasn’t a “themed party”—everyone wasn’t dressed “like a book title”—this was just a bad costume, like the many, many lousy costumes I have seen at private parties for decades. Strangely, nobody lost their job for any of those.
Ah, so it’s one those, “We looked deep into her heart, and determined that she doesn’t have a ‘racist bone in her body” defenses? I have no doubt that this professor thought she was being supportive of the book, as well as being provocative in dressing in blackface. But in dressing in historical blackface, she was doing nothing more than perpetuating painful stereotypes, as well as exercising incredibly bad judgment. She mixed her job into her private life by inviting faculty and students to the party, another bad judgment call. Lousy costumes are one thing. Lousy, racist costumes are another thing altogether.
I do not argue with “bad idea.”
I think a prompt apology even for unexpected offense is good, but this level of threats and harassment is against every bit of free speech and fairness possible. If people were offended at the party, they could just leave, without a scene if they were actually friends with the host.
I’m all for progressive goals, but harassment and witch-hunts makes them worse than any old fart still in the 20th century. McCarthy and Hitler sounded reasonable once, too.
Halloween costumes and people over twelve are always a bad combination. Law school professors and Halloween costumes? Dumb. Really dumb. Is she tenured? I hope not.
Also, the “Dear Colleague” letter has to be at play here. I suspect the University’s out house lawyers are simply concerned with keeping the Department of Education and/or the Department of Justice off their client’s back, fearing allegations the University failed to deal properly with a “hostile environment.” If a faculty member gets ruined for the rest of her career, so be it.
1) I don’t think she should have been fired, and am leaning toward “This violates freedom of speech.
2) This professor showed an incredible lack of judgment and is too stupid to be trusted to teach at a university.
I would concur in both 1) and 2).
In my alter ego as Captain Obvious:
This is another example of SJW cannibalism. She really did not think the rules she beats others with would ever be applied to her, since she is ‘one of the good ones’ and supposedly ‘woke’
Heaven preserve us from stupid white people going out of their way to prove how racially enlightened they are.