Erwin Chemerinsky, dean of the University of California-Irvine School of Law, just did a mic drop on his peers at the University of Oregon School of Law.
Writing in the Long Beach Press-Telegram, the First Amendment scholar goes out of his way to question the competence and ethics of not only the UO law faculty but UO President Michael Schill, who is a lawyer.
Shurtz was found responsible for “discriminatory harassment” – a violation of university policy – and received an undisclosed punishment. Her faculty peers and Schill publicly shamed her over the course of the investigation.
“Professor Shurtz exercised poor judgment in choosing her costume and not realizing that some would be very offended by it,” Chemerinsky writes:
But poor judgment and offending people cannot be a basis for a university punishing speech. In countless cases, the courts have been adamant that speech cannot be punished because it is offensive. … The government would have almost limitless power to censor speech if offensiveness is a sufficient ground for punishing expression.
And yet UO’s action is simply the latest example of universities punishing protected speech in order to “create inclusive learning environments,” he says.
Imagine if the university’s rationale for punishing Shurtz – that her offense to students “will make their learning more difficult – were applied in past decades, Chemerinsky says:
Under this rationale, campuses in the 1950s would have been justified in firing professors who were perceived as having communist leanings or in the 1960s could have removed professors who participated in the civil rights movement on the ground that such speech made students uncomfortable and interfered with their learning. …
I would have hoped a law school faculty and a university president who is a lawyer and law professor would have recognized this.