Though the report recognizes that Professor Shurtz did not demonstrate ill intent in her choice of costume, it concludes that her actions had a negative impact on the university’s learning environment and constituted harassment under the UO’s antidiscrimination policies. Furthermore, the report finds that pursuant to applicable legal precedent, the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school’s academic freedom policies.
Let’s start with Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985). In this case, an officer with the Baltimore Police Department performed musical routines in blackface while off duty. . .As you could imagine, many found his performances offensive. The NAACP and others organized a picket line, and tried to stop Berger’s performances–potentially by ‘physical force’…Because of the threat of violence, additional police forces were called in for backup, leaving other posts ‘unmanned’… the police department received many complaints from the community…The Department asked Berger to “cease all public performances, in any capacity, while on light-duty status’…Berger filed [a lawsuit], alleging a violation of his First Amendment rights.
The law school environment has become hostile, with discussions and strong conflicts of opinion taking place within the classrooms and on the law school social media pages. The reactions to the event and the students’ conflicts have required other teachers to take time from lessons to address the Halloween incident. The open discussions in class have also resulted in racial hostility between the students. The lack of understanding by some students, coupled with an existing lack of diversity in the law school student body, has led to minority students feeling further disenfranchised from their classmates and the school.
It is particularly ridiculous that the University of Oregon claims that Shurtz’s off-campus speech created a hostile environment on campus within the meaning of Title VI, since such statutes generally reach only on-campus conduct. Federal courts have tended to dismiss harassment lawsuits over even serious off-campus misconduct under Title VI and its sister statute Title IX. (See, e.g., Lam v. University of Missouri, 122 F.3d 654 (8th Cir. 1997) (instructor’s off-campus physical assault committed against student did not violate Title IX); Roe v. St. Louis University, 746 F.3d 874, 884 (8th Cir. 2014) (dismissing Title IX harassment lawsuit over off-campus rape of student by another student), citing Davis v. Monroe Cty Bd. of Educ., 526 U.S. 629, 645 (1999)).