(Updated)

Dear Colleagues –

On Monday I sent UO General Counsel Kevin Reed this request:

11/13/16, 3:18 AM, “UO Senate President” <senatepres@uoregon.edu> wrote:

Dear GC Reed –

I’m writing as UO Senate President, to request that you provide the Senate with the details of the charge you’ve given the AAEO office and/or outside counsel to investigate the Halloween blackface incident. The Senate and its Executive Committee is particularly interested in knowing what laws, regulations, or UO policies the investigation may involve.

We would like to have the information before the Senate meeting this Wednesday.

I received this reply:

On WednesdayNov 16, 2016, at 12:09 PM, Kevin S Reed <ksreed@uoregon.edu> wrote:

I have not given the AAEO office a charge. The OAAEO is responding to a complaint of discrimination by conducting an investigation under UO Policy V.11.02.  We have retained Barran Liebman to assist in the fact-finding.  They will also, along with OGC, advise AAEO and the University with respect to the legal standards to be applied as well as the protections that could apply to expressive conduct under the federal and state constitutions as well as UO policy regarding freedom of speech.

Kevin S. Reed | Vice President and General Counsel

The administration’s policy library is a mess, but I think the policy GC Reed references is the emergency policy adopted by President Schill, at http://policies.uoregon.edu/vol-5-human-resources/ch-11-human-resources-other/discrimination-complaint-and-response. The relevant language appears to be:

I. Policy Statement

The university is committed to equal access to programs, course offerings, facilities, admission and employment for all of its: (1) employees; (2) students; and (3) campus community members.  It is the policy of the university to maintain an environment free of prohibited harassment and discrimination against any person because of:

age, veteran status, race, sex, color, sexual orientation, ancestry, gender identity, national or ethnic origin perceived gender, religion, marital or family status, gender, pregnancy-related conditions, disability, genetic information, service in the uniformed services (as defined in state and federal law), the use of leave protected by state or federal law

Discriminatory harassment, including sexual harassment, regardless of the relative power of the harasser, is disruptive of workplace and campus life, and denies its subject equal opportunity as a student, employee or campus community member. Prohibited Discrimination (as defined in state and federal law), discriminatory harassment, including sexual harassment and retaliation impede the realization of the university’s educational mission and shall not be tolerated at the University of Oregon.

II. Definitions

1. Prohibited Discrimination is defined as any act that either in form or operation, and whether intended or unintended, unreasonably discriminates among individuals on the basis of age, race, color, ancestry, national or ethnic origin, religion, service in the uniformed services (as defined in state and federal law), veteran status, sex, sexual orientation, marital or family status, pregnancy, pregnancy-related conditions, disability, gender, perceived gender, gender identity, genetic information or the use of leave protected by state or federal law. “Unintentional discrimination” is a concept applicable only to situations where a policy, requirement, or regularized practice, although neutral on its face, can be shown to have disparately impacted members of a protected class. The concept is inapplicable to sexual or other forms of harassment which, by definition, result from volitional actions.

2. Discriminatory Harassment is defined as any conduct that either in form or operation unreasonably discriminates among individuals on the basis of age, race, color, ancestry, national or ethnic origin, religion, service in the uniformed services (as defined in state and federal law), veteran status, sex, sexual orientation, marital or family status, pregnancy, pregnancy-related conditions, physical or mental disability, gender, perceived gender, gender identity, genetic information or the use of leave protected by state or federal law and that is sufficiently severe or pervasive that it interferes with work or participation in any university program or activity, including academic activities because it creates an intimidating, hostile, or degrading working or university environment for the individual who is the subject of such conduct, and where the conduct would have such an effect on a reasonable person who is similarly situated.

…

III. Responsible Employees Reporting Obligations

Responsible Employees who receive Credible Evidence of Prohibited Discrimination, Harassment or Sexual Harassment involving an Employee, Student or Campus Community Member are required to promptly report that information as follows:

1. If the Credible Evidence relates to Sex Discrimination of a Student, Responsible Employees should report any information received to the Title IX Coordinator or to the Office of Crisis Intervention and Sexual Violence Support Services.

2. In all other instances, Responsible Employees should report any information received to the Office of Affirmative Action and Equal Opportunity (AAEO).

Employees should be aware that AAEO is tasked with ensuring compliance with this policy and state and federal law.  Therefore, while AAEO will work with employees, students and campus community members to ensure that they understand their complaint options, are protected from retaliation and are provided with interim measures as appropriate, AAEO employees are not advocates for individuals participating in the process.

The UO policy regarding freedom of speech is here: http://policies.uoregon.edu/policy/by/1/01-administration-and-governance/freedom-inquiry-and-free-speech. It says:

The University of Oregon values and supports free and open inquiry. The commitment to free speech and freedom of inquiry described in this policy extends to all members of the UO community: Faculty, staff, and students. It also extends to all others who visit or participate in activities held on the UO campus.

Free speech is central to the academic mission and is the central tenet of a free and democratic society. The University encourages and supports open, vigorous, and challenging debate across the full spectrum of human issues as they present themselves to this community. Further, as a public institution, the University will sustain a higher and more open standard for freedom of inquiry and free speech than may be expected or preferred in private settings.

Free inquiry and free speech are the cornerstones of an academic institution committed to the creation and transfer of knowledge. Expression of diverse points of view is of the highest importance, not solely for those who present and defend some view but for those who would hear, disagree, and pass judgment on those views. The belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive or “just plain wrong” cannot be grounds for its suppression.

The University supports free speech with vigor, including the right of presenters to offer opinion, the right of the audience to hear what is presented, and the right of protesters to engage with speakers in order to challenge ideas, so long as the protest does not disrupt or stifle the free exchange of ideas. It is the responsibility of speakers, listeners and all members of our community to respect others and to promote a culture of mutual inquiry throughout the University community.

Another relevant UO policy, not referenced by the GC, is that on Academic Freedom at http://policies.uoregon.edu/content/academic-freedom-0

Reviewed and Approved By:

Michael Gottfredson, President

Date:

05/28/2014

My understanding is that the outside lawyers hired by UO to investigate this incident have now finished their interviews, and that they will be giving the Administration their report soon. I will ask GC Reed to provide the Senate with a summary of this report, and I will post it when they do.

Bill Harbaugh, Econ Prof & Senate Pres.