Tag Archives: Halloween costumes

U of Oregon Violates Free Speech in Halloween Costume Punishment

The University of Oregon suspended a tenured professor for wearing blackface at an off-campus Halloween party, and now is considering additional punishment.

The university admits the professor had no ill intent (reports suggest that she wore it in a strange attempt to honor a black physician, by dressing up as the title character in a black doctor’s memoir, “Black Man in a White Coat”). But it claims — falsely — that this off-campus expression of racial insensitivity on a single occasion constituted illegal racial harassment under federal law (Title VI of the Civil Rights Act). In punishing the professor, it has violated the First Amendment.

As law professor Josh Blackman notes, the controversy began after “Nancy Shurtz, a tenured professor at the University of Oregon Law School, wore blackface to a Halloween party” as part of a costume that “also included a white lab coat and stethoscope.” In response, “Shurtz was suspended with pay, pending an investigation. That investigation came to a close on November 30.”

The University of Oregon’s investigation concluded that Shurtz had created a hostile environment through this mere act, even though constitutional experts such as UCLA law professor Eugene Volokh had observed weeks earlier that the professor’s off-campus expression was protected by the First Amendment under court rulings such as Iota Xi v. George Mason Univ. (4th Cir. 1993), which ruled that even a mocking portrayal of blacks by students using blackface was protected by the First Amendment. Moreover, the Fourth Circuit Court of Appeals had ruled in Berger v. Battaglia (1985) that public employees have a First Amendment right to perform publicly in blackface while not on duty.

On December 23, notes Professor Blackman, “the Provost of the University of Oregon released a statement, along with a redacted version of the investigative report,” claiming that “Shurtz can be disciplined consistent with the First Amendment and principles of academic freedom. Here is the Provost’s summary:

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 under 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.

The report’s findings of “harassment” are nonsense. Courts have ruled that far more offensive behavior does not rise to the level of illegal racial harassment, such as occasionally overhearing or witnessing the use of the N-word by co-workers. (See Bolden v. PRC, 43 F.3d 545 (10th Cir. 1994) and Witt v. Roadway Express, 136 F.3d 1424 (10th Cir. 1998)).

Halloween Is Now a Beat for the Bias Police

On campus, the holiday is at least as much fun as a 4-hour trip to the dentist. Students involved in fraternities and sororities at Tufts University, where the First Amendment is apparently not widely known, were told to not wear anything that could offend or annoy others during Halloween celebrations – or risk getting investigated by campus police and being hit with “serious disciplinary sanctions.”

The University of Florida considered the possibility of mental and emotional impairment by costume and offered to counsel students “troubled” by incidents involving Halloween costumes. For example, the University of Wisconsin-Platteville’s Bias Incident Team made sure that three women dressed as “Three Blind Mice” costumes that mocked the disabled last year did not do so again.

three-blind-mice

The University of Texas-Austin issued a grim 29-point guide to terrible mistakes in costuming, including unique or exotic themes. “A theme connected to our own communities are more likely to be respectful and fun for everyone (e.g. rather than a “jungle” theme, try a ‘Texas beach’ theme).

(More fun if the motif at a Texas party is just plain old Texas.)

Costumes Coded for Threat Levels

At the University of Massachusetts at Amherst, several signs around campus instructed students to avoid cultural appropriation when planning their Halloween costumes. The signs were posted in residence halls as part of an initiative led by the university’s diversity office, its Center for Women and Community, and its Center for Multicultural Advancement and Student Success.

One poster features a meter similar to the terrorism alert meter used by the federal government. Called the Simple Costume Racism Evaluation and Assessment Meter (or SCREAM), the poster displays five threat levels, all assigned a different color. Students worried about the possible threat level of their costumes were told to check with SCREAM in advance.

At Yale, where last Halloween’s great upheaval took place (Erica Christakis and her husband were shrieked at, threatened, cursed by a mob of students and in effect driven from the university because she had suggested that Yale men and women could make costume decisions with Administration guidance) the new head of Silliman, where the Christakis’s once were, held a Halloween party with a “spook team” and commemorated a fictional girl who supposedly had burned to death in the house.

Kishore Chundi ’20 said he appreciated the respect and sensitivity of the costumed actors. Organizers took precautions to ensure that attendees were comfortable. Santos stood at the entryway to the haunted house to warn attendees about the strobe lights inside and explain to students that they could leave at any point. “They made sure you could tap out at any time if it was too much to handle,” Chundi said.

What the President of Yale Should Have Said

On November 10, following the campus thousand-member “March for Resilience” over racial insensitivity, Yale president, Peter Salovey and Yale College Dean Jonathan Holloway emailed those of us in the Yale community. affirming “the importance we put on our community’s diversity, and the need to increase it, support it, and respect it.”

The email embraced “the right of every member of this community to engage in protest,” noted that “threats, coercion, and overtly disrespectful acts” are “unacceptable,” and praised the “affirming and effective forms of protest” in Monday’s march. This can best be read as a well-intentioned effort to assure students, faculty, and alumni that the University administration is on top of the problem.

Related: Snowflake Totalitarians at Yale  

But what, exactly, is the problem?  According to the email, the problem is how to “increase, support, and respect” Yale’s “diversity.”  Just before Halloween, Yale’s “intercultural affairs council” emailed students urging them to select their Halloween costumes with sensitivity to the feelings of minorities.  Those with a sense of humor will enjoy this earnest email. In response, Erica Christakis, who is associate “master” of Silliman, one of Yale’s residential colleges, emailed its students.  Combining common sense, respect for students’ maturity and moderation, she urged students to decide for themselves on appropriate costumes and if they found one offensive, either speak about it directly to the offender or ignore it.

This advice, ostensibly, is what unleashed the students’ fury as they vilified, traduced, and sought to intimidate the Christakis’s, Erica and her husband Nicholas, “master’ of Silliman, demanding their resignations. According to a Yale Daily News observer, “This man was surrounded outside his own home by dozens of students, who called him “f—king disgusting.” They jeered, in clearly implied threat, ‘We know where you live.’” Here are some other points that I wish the Salovey-Holloway email had made in the strongest possible terms.

1.  The fact that students complain of rampant racism on campus does not mean that it is true.  Yale — and virtually every other old institution – countenanced racism and even practiced it, but that period is long gone. Indeed, it is hard to think of an institution that tries harder than Yale does to make students of all backgrounds feel at home, an effort underwritten by a recent $50 million commitment to increase diversity there and by the support of four ethno-specific cultural houses. Much the same is true on other elite campuses. Yes, Yale calls its residential college leaders “masters” and, contrary to student protests, this title is entirely benign, not a vestige of slavery, as some seem to think.  (Whether Calhoun College should change its name in light of its eponym’s defense of slavery is a more serious question).  Historical context – how and why earlier generations saw the world as they did — is part of the moral reasoning process that a university teaches.  Condemning what now seems like obvious racism, while entirely appropriate, is the easiest part of such moral reasoning, requiring little insight.

Related: Voices of the Yale-Mizzou Eruptions

2.  The purpose of a great university like ours is not to make students feel comfortable in their views but to unsettle those views with fine teaching and scholarship.  Only then can students learn to confront uncomfortable data and ideas and make up their own minds.  Mature convictions must be earned through a lifetime of grappling with what is discomfiting and engaging in the kind of reading, listening, and arguing that is a privilege and duty of serious citizenship. A great university must defend itself for what it is and should be – a sanctuary for study and engagement – not a comfortable and comforting cocoon.  Students who come with a hypersensitive aversion to conflict and to intellectual diversity (as distinct from the easy, faux diversity of skin color and surname) are in the wrong place

3.  Students state (or shout) many grievances, often in the form of slogans.  Some are plausibly justified, others are gross exaggerations or simply false.  Some seek genuine dialogue; others seek power grabs and shakedowns meant to foreclose conversation.  The university community should demand to know the factual bases for those grievances, examine them on their merits, remedy them if warranted, and reject them if not.  Reflexive mea culpae may buy temporary peace and goodwill but only invite more extreme demands. As Yeats warned, passionate intensity can undermine both truth and civility.

4.  Mob psychology, whether created by students or others, is a kind of crypto-violent form of politics using shouts, threats, and lies as weapons.  Honeyed words and apologies cannot mollify it.  It thrives when it does not get its way, and failure simply confirms its grievances.  The hostility to reason negates the university’s very purpose. Salovey, an eminent psychologist, surely knows all this but has not said it. Among this psychology’s other tics, it fastens on stupid, hurtful comments by fools and bigots (perhaps not even members of the university community, ascribes these views to many others who in fact condemn them, impugns the university for tolerating racism, and excoriates those on the sidelines as equivocating enemies of the cause.  But every community has fools and bigots and must deal with them in its own way. Yale, a community of trained skeptics, eschews authoritarian solutions to questions of truth, relying instead on open, disciplined discourse to discredit error – even as we know that some of this discourse will itself be false.

5.  America’s diversity is one of its greatest gifts to the world, and institutions like Yale are right to seek and protect it. But how we define and implement diversity is crucial to its real value in campuses, workplaces, politics, and elsewhere.  Getting diversity management right is difficult; good intentions can easily backfire. Diversity in America: Keeping Government at a Safe Distance.

Racism, sexism and other odious isms obviously exist, and we should firmly reject them. But combating these isms is especially hard for a university.  They are ill-defined and based on subjective intent, so reasonable people disagree about whether they exist in almost any particular case.  For the same reason, an accused cannot disprove them. Because many attributes are distributed differently among different groups, and because generalizations are useful, indeed inescapable, it is often unclear – even to the Supreme Court — when a judgment is just a useful generalization or instead reflects invidious bigotry and hostility. This ensures lots of false positives and false negatives.  One who feels victimized by an ism resents being told that he is over-reacting and mistaken.  His hurt seems like proof enough of intentional harm.  On the other side, being falsely accused of an ism today is equally or more damaging socially than the hurt or indignity felt by the complainant.

Obsessive Ethnic Emphasis

6.  University officials like us bear some responsibility for the aggressive, obsessive ethnic emphasis practiced on our campus.  Through some mixture of cowardice, complaisance, and genuine conviction, we cater to the sensibilities of the most outspoken, politicized students by donning a kind of “kick me” sign. In this identity politics, students have strong incentives to dramatize their wounds as proof of the authenticity of a larger, more heroic social agenda — here, the extirpation of isms.

7.  The only way out of this gyre of recrimination and misunderstanding is to cultivate two qualities that are sorely lacking in diversity discourse on campus: candor and thicker skins.  On campus, candor should be the easiest virtue, but in fact there is remarkably little of it.  Few are willing to concede the deep tensions among diversity, liberty, and equality – and thus the costs to precious values of one position or another.  By thicker skins, I mean that we should cultivate a capacity for greater resilience, not greater delicacy.  As one commentator put it, the U.S. today has become “a world of endless slights.”  (Even that comment will elicit anger for suggesting that putative isms are merely slights).  This is corrosive in a society as diverse, interactive, plainspoken, casual, and freewheeling as ours.  It chills personal interactions by denying them the lubricating pleasure of spontaneity.

It discourages candid discussion or artistic expression on vital public issues. It enlists formal and informal sanctions in order to reduce what should be robust give-and-take. It invites us to open our wounds, magnify our fears, and parade our sensitivities, to imagine injuries and motivations that do not exist and to view others, without basis, as enemies.  It rewards cant, hyperbole, and reductive rhetoric while penalizing moderation and reason.  It encourages us to seek security in groups of people who look, think, or worship like us rather than to venture out in the more diverse public square where our common citizenship is forged.  It makes a mockery of rules that are brandished to penalize what is often just ignorance, boorishness, interpretive confusion, ill-considered speech, clumsy provocation, misjudgment, rough or poor humor and other unfortunate infelicities.

8. We do better to respond to such conduct with constructive engagement, forceful rebuke, pointed rebuttal, and mental shrugging of shoulders and biting of tongues.  It is unfair that the people who need the thickest skins are often those who already feel under siege. Two factors, however, can help palliate this unfairness, if not assuage their hurt and indignation.  The informal social norms condemning hateful attitudes and conduct are stronger today than ever before.  And the alternatives to developing thicker skins are all unappealing, unconstitutional, or unworkable.

9. Our administration pledges to be wiser in the future, though no less committed to lux et veritas. Let our students pledge to do the same.”