In his First Monday Musings column on Above the Law, Dean Vikram Amar writes about how the intent of a University of Oregon law professor who wore blackface to a Halloween party matters.

"My first observation is that notwithstanding talk in some Supreme Court cases about the importance of “academic freedom” and the special role university faculties play in American democracy and society, it is not clear that even tenured public universities professors enjoy any special expressive latitude, at least under the First Amendment. ...

"My second observation is that the First Amendment is not the only potentially relevant legal constraint. Due process (are faculty clearly told what they cannot say so they are not sandbagged?), contract law (tenure is often a contract concept), and state constitutional protections may give public faculty members more latitude than does the First Amendment. And these extra protections may be perfectly appropriate if we do take seriously historical notions of academic freedom. ...

"My last observation is an important one, and that is that critics of Professor Shurtz have themselves erred. President Schill’s quick characterization of Professor Shurtz’s use of blackface as being “in jest” is at odds with her own explanation, and we need remember that there has been no process yet to determine any actual facts. Shurtz’s 23 faculty colleagues assert that her “intentions [don’t] matter.” But whether we are interpreting the First Amendment or deciding whether someone should be required to give up her very livelihood, intent ought clearly to matter a great deal. ..."

Full column at Above the Law