My friend and UCLAW colleague Eugene Volokh has more on the free speech mess at University of Oregon:
People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can’t be trusted to evaluate minority students fairly, 2) students will be afraid that they won’t be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn’t stand to be in the room with them) or even in the institution, and won’t learn as effectively. I’ve seen these arguments made often, most recently as to the University of Oregon controversy. ...
I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression — both casual and more formally academic — on university professors’ part, because they reach far beyond black makeup in Halloween costumes.
Precisely right. There is a pertinent case, by the way, Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985), in which a police officer brought § 1983 action challenging department's order requiring him to cease public performances in blackface while off duty and challenging denial of his request for permission to perform for compensation while off duty. The court held that "Berger's conduct in performing public entertainment in blackface was constitutionally protected speech and that the defendants as public employers were not justified by any sufficiently weighty countervailing state interest in taking disciplinary action either punishing Berger for that conduct or chilling in any way his continuation of it."
The court further explained that the "threat of disruption" cited by the Police Department as grounds for punishing the officer "was caused not by the speech itself but by threatened reaction to it by offended segments of the public." Imprtantly, the court explained that:
Short of direct incitements to violence by the very content of public employee speech (in which case the speech presumably would not be within general first amendment protection), we think this sort of threatened disruption by others reacting to public employee speech simply may not be allowed to serve as justification for public employer disciplinary action directed at that speech.
Back to Volokh. He goes several examples of other types of speech that some students might find offensive:
Imagine, for instance, a professor who says — at a party, in an op-ed, at a debate, in a scholarly article, or wherever — that she thinks that Catholicism is a foolish and evil religion, because it oppresses women and gays. ...
Or say a professor says that President-elect Donald Trump is a charlatan and a bigot and that Trump voters were therefore either fools or bigots themselves. Again, this could be in a conversation at a party where students may be present, or in an op-ed, or in a scholarly article. ...
Likewise, say a professor sharply condemns certain streams of Islam (e.g., Wahhabism), or for that matter just posts the Muhammad cartoons on his office door or when writing about them on his blog. Some Wahhabi students may be offended by the former. ...
Or say a professor publicly identifies as a hard-line Marxist, who thinks that the capitalist class has blood on its hands from its oppression of the workers. The professor might have praised Marxist mass murderers, such as Stalin or Mao, and talked of the justifiability of violent revolution. Or he might have just been seen wearing a Che Guevara T-shirt.
And then he goes in for the kill:
Yet I take it that universities’ (especially public universities’) general answer to the student who complains about a professor who made anti-Trump-voter or anti-Catholicism or anti-capitalist or anti-American statements at a party or in a blog post will be, more or less, “tough.” Professors are entitled to express their views, including controversial ones; indeed, they’re supposed to express such views, however controversial, as part of their scholarship and their public commentary. And that applies to condemnation of religions, economic classes and political belief systems, as well as debate on less heated topics. “[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” If you disagree with the professor, express that disagreement, the universities would say; but we won’t shut the professor up in order to prevent you from feeling offended or alienated.
Volokh is generally a pretty cheerful guy in my experience, which may explain why he thinks that opening the door to punishing Shurtz would open the door to all of these other types of speech being punished.
And that's where I disagree.
As I noted in a prior post, where speech offends left-wing sensibilities, Universities (like Oregon) fall all over themselves to punish it.
Double standard? Yep. And very few people in higher education care.