UPDATE: The Ethics Alarms post below ran in 2021. Now the revolting controversy is back in the news: the Vermont Law School in South Royalton, Vermont still seeks to remove the artwork above and below depicting the history of slavery in the U.S. As I wrote in 2021, the school simply capitulated to irrational, power-seeking student complaints alleging a racist message being conveyed by anti-racist art. To his credit, the artist has fought back, and the school has wasted resources intended for education to support the worst kind of mindless race-hucksterism.

At the end of the post, it noted that the case was headed to an appellate court, and it finally reached the U.S. Court of Appeals for the Second Circuit in New York, where the two sides presented arguments on January 27. For two years, the law school has covered the paintings with white panels suspended just above their surface so as not to damage them, pending the outcome of the court appeal.

I still think Kerson is likely to lose. I do not see how a Court can compel a school to display an artwork it doesn’t want to display. The federal law at issue says artists can prevent modification of their work if the change would harm their “honor or reputation.” The law school says that covering the murals, even permanently, is not a modification. An attorney representing the law school states simply, “If you own a painting, of course you have the right to decide whether or not to display it.”

The white artist, Sam Kerson argues that his reputation will be scarred if his work is falsely treated as “racist.” “He must suffer the indignity and humiliation of having a cover put over his art,” his lead attorney, argued to the Second Circuit.

Nothing much has changed since the 2021 post, but some of the quotes cited in the New York Times article this week are demonstrate how thoroughly race issues have become unmoored from rationality and fairness:

• “If someone is saying to you, ‘How you’re depicting me is racist,’ for you to live in your own ignorance, and further aggravate the situation — now you’re showing us who you are,” said Yanni DeCastro, a second-year student. [In other words, if someone claims your art is racist, disagreeing with that assessment is racist.]
• “We need to stop protecting white fragility,” said another student. [Another transparent tactic to ban disagreement with race hucksters! Kerson isn’t uncomfortable talking about race: his painting is an invitation to face racial history. It’s his black critics who are “fragile.”]
• The same student told the Times:  “The mural is covered, but what’s really changed? What is the plan to ensure that students of color feel safe and welcome?” [Yes, students are threatened by a covered painting. What kind of lawyer can someone like this become? My guess: a poor one.]
•  A second-year student told the Times: “What is real to me is a painting to you The artist was depicting history, but it’s not his history to depict.” [Only blacks can write about, make movies about, or paint pictures regarding black history. Why wouldn’t the converse also be true, then?]

Here is the original post:

In 1993, artist Sam Kerson painted a mural depicting the progression of American slavery from the slave trade through to the Underground railroad. “The Underground Railroad, Vermont and the Fugitive Slave” celebrates “the efforts of black and white Americans in Vermont and throughout the United States to achieve freedom and justice,” as Kerson explains on his website. Here’s the second panel of the artwork…

Funded by a grant from the Puffin Foundation, the mural was mounted at the Chase Community Center at the Vermont Law School in South Royalton, Vermont. African-American students had periodically taken offense at the artist’s style, and that reaction became a substantial movement after a white cop with a history of equal-opportunity bullying in Minneapolis managed to contribute to the death of a criminal resisting arrest who happened to be black. Naturally, this immediately affected what kind of art could be exhibited in public. I’m not being sarcastic: that’s what happened, as bizarre as it is.

Though Kerson has a long record of creating art in support of progressive causes, including works honoring civil rights heroes like Harriet Tubman, Rosa Parks and Frederick Douglass, his intentions were deemed irrelevant by the protesting students, who had political and artistic objections. Students Jameson Davis and April Urbanowski, echoing the accusations of the mob that decided that Dr. Suess’s art was racist, argued that the representations of blacks are “completely inaccurate”—gee, ya think?— adding, “Regardless of what story is being told, over-exaggerating Black features is not OK and should not be tolerated. White colonizers who are responsible for the horrors of slavery should not be depicted as saviors in the same light.”

I suppose whites should be similarly outraged at the green skin of one of the slave-traders. The students’ statement is racist at its core, claiming that the whites who engaged in the business of slavery were indistinguishable from the whites who worked to abolish it, all whites being, apparently, the same. The objections are also based in art ignorance, reminding me of an uncle who thought Picasso was a hack because his women “looked weird.” Fauvism, Cubism and Surrealism, as well as American and Mexican muralism, are based in non-realistic portrayals of humans of all races, with the mural art Kerson practices especially notable for cartoon-like exaggerations.

Following a now familiar script, and galvanized in their submissiveness by that Minnesota episode, the law school leadership capitulated to the squeaky wheels, not being willing to defend an artist or his work once it had been tagged with the R-word. On July 6, 2020, Dean Thomas McHenry said in a statement that “the depictions of the African Americans on the mural are offensive to many in our community and, upon reflection and consideration, we have determined that the mural is not consistent with our School’s commitment to fairness, inclusion, diversity and social justice.”

Since the murals could not be removed without being destroyed, raising more legal and ethical issues than the law school cared to contend with, it planned to conceal them behind a wall of acoustic panels. The artist sued, citing the Visual Artists Rights Act, which gives artists the right to attribution and to protect the integrity of their visual works. The right of integrity allows artists to block deforming or mutilating changes to their work when it would prejudice their reputation, or when the art is of “recognized stature.” Kerson argued that concealing his murals would mark his art as offensive and unworthy for viewing, thus damaging his standing as an artist committed to progressive causes. He also raised concerns that the acoustic panels might create an acidic atmosphere and trap moisture, damaging the murals, and argued that covering up the murals is itself a distortion, mutilation or modification of his art that violates the law.

Chief Judge Geoffrey W. Crawford of the Federal District of Vermont ruled against Kerson and for the censors in an Oct. 20 decision. My guess is that he will lose his planned appeal as well.

The law is one thing, ethics is another, and the deteriorating culture is yet another. I don’t care for Kerson’s style or the works of most political muralists in general. However, I recognize that endorsing the act of covering up artwork that activists brand as “offensive” is a slippery slope that should be avoided at all costs.

In fact, I’d suggest erecting acoustic panels around that slope, just to be on the safe side.

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Sources: Tax Prof Blog, ABA Journal