Editor’s Note: This story by Alex Hanson first appeared in the Valley News Oct. 8.
SOUTH ROYALTON — It’s not every day that a law student gets to listen in when someone is suing their law school, Monet Ballard, a first-year student at Vermont Law School, said Friday.
Ballard and dozens of other students crowded into a lecture hall for a hearing on the school’s motion to dismiss a case brought by an artist whose murals VLS wants to place behind a wall.
“I really loved hearing both sides of [the] story,” Ballard, 22, said at the conclusion of Friday morning’s U.S. District Court hearing. The lawyers for both the law school and artist Sam Kerson made credible arguments, she said.
The case, brought by Kerson last fall, carries some unusual cultural weight. In many cases when an institution removes a symbol, such as Dartmouth College’s decision last year to put its Baker Library weather vane in storage, there isn’t much of a public process.
But the suit against the law school has generated a hefty case file, and Friday’s hearing in Oakes Hall involving the lawyers in the case and federal Judge Geoffrey W. Crawford was a rare opportunity to listen to a thoughtful, well-researched argument about what it means, from a legal standpoint at least, to cover up a visual representation.
The law school announced last summer its intention to paint over a pair of 8-by-24-foot murals depicting fugitive slaves escaping via the Underground Railroad to Vermont. Nearly three decades ago, school officials had invited Kerson to paint them on walls in the law school’s Chase Community Center, adjacent to the hearing location, and he and several assistants completed them in 1994.
Over the years, members of the school’s community have criticized the way the murals depict African Americans, with exaggerated and awkward physical features.
The renewed debate over treatment of African Americans after the murder last year of George Floyd at the hands of Minneapolis police intensified efforts to remove the murals, and school officials took action. They are currently covered by dropcloths.
Kerson’s lawyers, Steven Hyman, a former board president of the New York chapter of the American Civil Liberties Union, and Barre lawyer Richard Rubin, contend that the federal Visual Artists Rights Act (VARA) protects the murals from destruction, damage or modification that harm the honor or reputation of the artist.
Crawford ruled in March that under VARA “an owner’s decision to conceal a work does not constitute modification or mutilation.” He also wrote, at the time, that it seemed unlikely that Kerson would prevail, and the hearing Friday was on the law school’s motion for summary judgment, which would avoid the time and expense of a full trial.
Since the law school’s motion was up for debate, its lawyer, Justin Barnard, argued first. From the outset, the law school has argued that nothing in VARA or any other law prevents it from putting the murals behind a wall of acoustic tiles.
“The bottom line is Congress (in crafting VARA) … did not intend to compel an institution to display an artwork it no longer wants to display,” Barnard said.
Further, the law doesn’t require the owner of a work of art to maintain it in any particular way, he said. If the mural’s condition degrades behind the panels, “it will just be an artwork in less pristine condition than it might have been,” Barnard said.
Crawford noted that if he owned a portrait painting and drew a mustache on it, that might be considered a modification that mocks the artist, but if he just kept the portrait in his basement and directed verbal abuse at it, then the artist would have no legal recourse.
“There is not an intentional attempt to make fun of the artwork,” Barnard said.
Given Crawford’s ruling in March, Hyman’s argument calling on the judge to hold a full trial was a bit of a Hail Mary, and he threw it with rhetorical might.
“The law school,” he said, “does not deign to even talk about the structure of the statute.”
He called the VLS effort to obscure the mural “a maneuver. … We’re going to hide the mural and hope that it gets obliterated.”
The law school came up with its plan without consulting an art conservator, he noted. A professional conservator consulted by Kerson’s team said in a court filing that the murals would be harmed by their confinement, though she didn’t specify how.
The law school’s approach to VARA ignores its intent, Hyman said.
“It’s a statute about culture and the protection of art and the protection of artists so we can further our cultural heritage in this country,” he said. “It is focused on what is happening to the art in relation to the artist.”
The murals were celebrated when Kerson — who was then a Vermont resident and now lives in Quebec — painted them. Now the law school doesn’t want them seen.
“They are saying, ‘Sam Kerson’s artwork is terrible. … Sam Kerson is a bad person,’ ” Hyman said.
“That’s a little over the top,” Crawford said, a point Hyman conceded, in part.
“I agree with you that this is not a positive for Mr. Kerson,” Crawford continued. But if the law school had hired a conservator to ensure the well-being of the murals, would that have been OK?
The law school has conceded that the wall might damage the murals, Hyman said.
Even lawyers and judges are often in the dark about the law. There’s a reason it’s all written down.
“I keep thinking,” Hyman said in reference to VARA and the murals, “we’re in a law school and they didn’t know the law.”
“I probably shouldn’t reveal this,” Crawford said. “I had never heard of the VARA until I got this case.”
There isn’t much case law about VARA, which was enacted in 1990, so it’s likely that Crawford’s decision will break new ground. The circumstances of the law school’s murals are unusual. They can’t be moved without destroying them, since they were painted directly on the gypsum walls. Hyman said he hasn’t seen another case like it.
“Once it’s incorporated in a building, it’s there to be seen,” Hyman said. “It’s unfortunate that the law school is going to have to find a way to live with it, not cover it.”
In a brief rebuttal, Barnard pointed out that there’s an overarching constitutional issue: Requiring the law school to present a piece of art “is going to be a violation of the First Amendment.”
“The law school is not intending to cast Mr. Kerson as a bad artist or a bad person,” he added. But the murals and the debate over them are “a distraction” and the law school is entitled to decide what to do with them.
“I certainly don’t think there needs to be a trial on that,” he said.
In a brief order Friday afternoon, Crawford said the minutes of the hearing were now in the court record and that he had taken the motion for summary judgment “under advisement.”
During a question-and-answer session after the hourlong hearing, Crawford and the lawyers fielded questions about anything but the details of the case.
For students, the hearing was complicated. The idea of covering up an artwork that people find offensive is simple and straightforward. Where Barnard’s arguments lined up like “stepping stones to dismissal,” Hyman’s written and spoken arguments seemed designed to muddy the waters, said Scott Berkley, 27, like Ballard a first-year student.
The way that the national situation is playing out, said Phoebe Howe, 27, Berkley’s partner and classmate, points out the difficulty of “conflating a racist act with somebody being a racist person.” She wasn’t speaking specifically about Kerson.
“I really wish our culture could have a better conversation,” she said.
Clarification: An earlier version of the photo caption included outdated information.
